JK585 
.A5 
1886 




qass. cJ )1 C96 .J9 
Book n^ . / 



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I 



49th Congress, \ SEN^ATE. ( Eeport 

1st Session. i \ No. 135. 



IN THE SENATE OF THE UNITED STATES. 



fCo 



February 18, 1886. — Ordered to be printed. . 

'^&s4tL. 

Mr. Edmunds, from the Committee on the Judiciary, submitted the 

following 

REPORT 



LETTER FROM THE ATTORNEY-GENERAL OF THE UNITED STATES DE- 
CLINING TO TRANSMIT TO THE SENATE COPIES OF OFFICIAL RECORDS 
AND PAPERS CONCERNING THE ADMINISTRATION OF THE OFFICE OF 
THE DISTRICT ATTORNEY OF THE SOUTHERN DISTRICT OF ALJBAMA. 



The Committee on the Judiciary^ to ivhich urns referred a letter from the 
Attornei/- General of the United^ States declining to transmit to the Senate 
copies of official records and papers concerning the administration of the 
office of district attorney of the southern district of Alabama from Jan- 
uary 1, 1885, to January 25, 1886, respectfully reports : 

That on the 17th of July, 1885, the President of the United States, 
pursuant to the provisions of section 1768 the Revised Statutes, sus- 
pended George M. Duskiu from the execution of the duties of the office 
of district attoruey of said district, by an order in the following words: 

Executive Mansion, 
Washington, D.C., July 17, 1885. 
Sir]: You are hereby suspended from the office of attorney of the United States for 
the southern district of Alabama, in accordance with the terms of section 176^, Revised 
Statutes of the Uoited States, and subject to all provisions of law applicable, thereto. 

GROVER CLEVELAND. 
To George M. Duskin, Esq., 

United States Attoruey, Mobile, Ala. 

And on the sameda.y, pursuant to the same statute, designated John 
D. Burnett to perform the duties of such suspended ofl&cer in the mean 
time, by a letter of authority iu the words following : 

Grover Cleveland, President of the United States of America, to all ivTio shall see these pres- 
ents, greeting : 

Know ye, that by virtue of the authority coufeiTed upon the President by section 
176-) of the Revisoil Statutes of the United States, I do hereby suspend George M. 
Duskiu, of Alabama, from tlie 'oPQce of attoruey of the United States for the s'lutheru 
district of Alabama, until the end of the next session of the Senate ; and 1 lien^by 
desij.mate John D. Burnett of Alabama, to perform the duties of such susjicnded otii 



2 EELATIONS BETWEEN SENATE AND EXECUTIVE DEPARTMENTS, 

cer ill tlieraean time, he being a suitable person therefor; subject to all provisions of 
la\T applicable thereto. 

In testimouy whereof I have caused these letters to be made patent, and the seal of 
the United States to be hereunto affixed. 

Given under my hand at. the city of Washington, the seventeenth day of .July, in 
the year of our Lord one thousand eight hundred and eighty-tive, and of the Inde- 
pendeuce of the United States of America the one hundred and tenth. 

GEOVER CLEVELAND. 
Bv the President : 

[SEAL.] T. F. BAYARD, 

Secretary of State. 

On the 14th December, 1885, the Senate then being in session, the 
Piesident nominated the same John D. Burnett to be attorney of the 
duited States for the southern district of Alabama in the playe of the 
said Duskin, suspended, in the following words : 

I nominate .John D. Burnett, of Alabama, to be attorney of the United States for 
the southern district of Alabama, vice George M. Duskin, suspended. 

GROVER CLEVELAND. 

This nomination was in due course referred to the Committee on the 
Judiciary. 

Since the i)assage of the act of 2d March, 1867, "regarding the ten- 
ure of certain civil offices," it has been the practice of the Committee 
on the Judiciary, whenever a nomination has been made pro])osing the 
removal from office of one person and the appointment of another, to 
address a note to the head of the Department having such matters in 
charge (usually the Attorney General), asking that all papers and in- 
formation in the possession of the Department touching the conduct 
and administration of the officer proposed to be removed, and touching 
the character and conduct of the person proposed to be apj)ointed, be 
sent to the committee for its information. Tin's practice has through 
all administrations been carried on with the unanimous ai)|)roval of all 
the members of the committee, although the composition of the com- 
mittee has been during this ])eriod sometimes of one ])olitica! character 
and souietimes of another. In no instance until this time has the com- 
n)ittee met with any delay or denial in respect of furnishing such papers 
and inibrmation, with a single exception, and in which exception the 
delay and suggested denial lasted for only two or three days. 

The committee has thus hitherto been enabled to know the character 
and quality of the administration of the office in charge of the incum- 
bent i)roposed to be removed as well as the character and quality of the 
person proposed to be appointed, so far as the papers in the Depart- 
ment c aild furnish information in regard thereto. 

In the instance now particularly under consideration, the committee, 
according to its standing course, on December 20, 1885, through its 
chairman, addressed a note to the Attorney-General in the same form, 
and asking for the same papers and information, that it had been accus- 
tomed to do. After sundry delays and explanations it became evident 
to the committee that it could not by this informal method obtain an 
iiis])ection of the papers and documents in the Department of Justice 
bearing upon the subject. It accordingly, on the 25th of January, 188G, 
re])orted to the Senate, for its adoption, a resolution in the following 
words: 

JU'Holred, Thatthe Attorney-General of the United States be, andhe herebyis, directed 
to transmit to the Senate copies of all documents and papers that have been filed in 
the Department of Justice since the 1st day of January, A. D. 18S5, in relation to the 
management and conduct of the office of district attoi'xiey of the United States of the 
southern district of Alabama. 

which ojj the next day was adopted by the Senate without a division. 

WAV ' .. ^ 



RELATIONS BPyrWEEN SENATE AND EXECUTIVE DEPARTMENTS. 3 

The Attorney- Geueral, ou tlie 1st day of February, 1886, sent to the 
Senate a communication in the following words: 

Department of Justice, 

January 28, 1886. 
The Fresideiii pro iempore of Ihe Senate of Ihe United States : 

I acknowledge the receipt of a resolntiou of the Senate adopted on the 25th instant, 
in executive session as follows :- 

''lietsolved, That the Attorney-General of the United States be, and he hereby is, 
directed to transmit to the Seiiate copies of all docnnients and papers that have been 
tiled m the Department of Justice since the 1st day of January, A. D. 1885, in relation 
to the management and conduct of the office of district attorney of the United States 
of the soutliern district of Alabama." 

In response to the said re solution the President of the United States directs me to 
sav that the jiapers which were in this Dei)artment relatiiig to the fitness of John D. 
Burnett, lecently nominate,! to said ollice, having been alreafiy sent to the Judiciary 
Committee of the Senate, and the papers and documents which are mentioned in the 
said resolution, and still remaiuing in the custody of this Department, having ex- 
clusive reference to the susjiension by the President <'f George M. Dnskiu.the late in- 
cumbent of the office of tlistiict attorney of the United States for the southern dis- 
trict of Alabama, it is not considered that the public interest will be promoted by a 
comi)liauce with said jesulutiou and the transmission of thu papers and documents 
Ihereiu uientidued to the Senate in executive session. 
Very resi)ectfullv, vour obedient servant, 

. A.'H. GARLAND, 

A ttorn ey- G entral. 

This letter, although in response to the direction of the Senate that 
coi)ies of any papers bearing on the sii'bject within a given period of 
time be transmitted, assumes that the Attorney-General of the United 
States is the servant of the President, and is to give or withhold copies 
of documents in his office according to the will of the Executive, and not 
otherwise. 

Your committee is unable to discover, either in the original act of 
1789 creating the oflice of Attorney-General, or in the act of 1870 creat- 
ing the Department of Justice, any provision w^hich makes the Attorney- 
General of the United States in any sense the servant of or conti^olled 
by the Executive in the performance of the duties imputed to him by 
law or the nature of his office. It is true that in the creation of the 
Department of State, of War, and of the JSTavy it was provided in sub- 
stance that these Secretaries should perform such duties as should from 
time to time be enjoined upon them by the President, and should con- 
duct the business of their Departments in such manner as the President 
should direct, but the committee does not think it important to the 
main question under consideration that such direction is not to be found 
in the statute creating the Department of Justice, for it is thought it 
must be obvious that the authority intrusted by the statute in these 
cases to the President to direct and' control the performance of duties 
was only a superintending authority to regulate the performance of 
the duties that the laiv required', and not to require the performance of 
duties that the laws had not devolved upon the heads of Departments, 
and not to dispense with or forbid the performance of such duties ac- 
coiding as it might suit the discretion or the fancy of the Executive. 
The Executive is bound by the Constitution and by his oath to take 
care that the laws be faithfully executed, and he is himself as much 
bound by the regulations of law as the humblest officer in the service 
of the United States, and he cannot have authority to undertake to 
faithfully execute the laws whether applied to his own special func- 
tions or those of the Departrnents created by law, otherwise than by 
causing, so far as he lawfully may, and by lawful methods, the heads 
of Departments and other officers of the United States to do the duties 
which the law, and not his will, has imputed to them. 



4 RELATIONS BETWEEN SENATE AND EXECUTIVE DEPARTMENTS. 

The important question, then is, wliether it is within the constitu- 
tional competence of either house of Congress to have access to the offi- 
cial papers and documents in the various public offices of the United 
States created by laws enacted by themselves. It may be fully admit- 
ted that except in resp ct of the Department of the Treasury there is no 
statute which (iommands the head of any Department to transmit to 
either house of Congress on its demand any information whatever 
concerning tbe administration of his Department, but the committee 
believes it to be clear that from the veiy nature of the powers en- 
trusted by the Constitution to the two houses of Congress, it is a neces- 
sary incident that either house must have at all times the right to knowall 
that officially exists or takes place in any of the Departments of the Gov- 
ernment. So perfectly was this proposition understood before and at the 
time of the formation of the Constitution that the Continental Congress, 
before the adoption of the jiresent Constitution, in establishing a De- 
partment of Foreign Affairs and providing for a principal officer thereof, 
thought it fit to enact that all books, records, and other papers in that 
office should be open to the inspection of any member of Congress, pro- 
vided that no copy should be taken of matters of secret nature, with- 
out special leave of Congress. . It was not thought necessary to enact 
that the Congress itself should be entitled to the {production and inspec- 
tion of such papers, for that right was supposed to exist in the very 
nature of things, and when under the Constitution, tbe Department 
came to be created, although theprovisiou that each individual member 
of Congress should have access to the papers was omitted (evidently 
for reasons that can now be quite well understood), it was not thought 
necessary that an affirmative provision should be inserted, giving to 
the houses of Congress the right to know the contents of the public 
papers and records in the public offices of the country whose laws and 
whose offices they were to assist in creating. 

It is believed that there is no instance of civilized governments having 
bodies representative of the people or of states in which the right and 
the i>ower of those representative bodies to obtain in one form or another 
complete information as to every paper and transaction in anj^ of the 
executive departments thereof does not exist, even though such papers 
might relate to what is ordinarily an executive function, if that function 
impinged upon any duty or function of the representative bodies. 

A qualification of this general right may under our Constitution exist 
in case of calls by the House of E-epresentatives for papers relating to 
treaties, &c., under consideration and not yet disposed of by the Presi- 
dent and Senate. 

The committee feels authorized to state, after a somewhat careful 
research, that within the foregoing limits there is scarcely in the history 
of this Government until now any instance of a refusal by a head of a 
De])artment, or even of the President himself, to communicate official 
facts and information, as distinguished from private and unofficial pa- 
pers, motions, views, reasons, and opinions, to either house of Congress 
when unconditionally demanded. Indeed, the early journals of the 
Senate show great numbers of instances of directions to the heads of 
Departments, as of course, to furnish papers and reports upon all sorts 
of affairs, both legislative and executive. 

The instances of requests to the President, and commands to the heads 
of Departments, by each house of Congress, from those days until now, 
for papers and information on every conceivable subject of public affairs 
are almost innumerable, for it appears to have been thought by all the 
Presidents who have carried on the Government now for almost a cen- 



EELATIONS BETWEEN SENATE AND EXECUTIVE DEPARTMENTS. 5 

tury, that, even in respect of requests to them, an independent and co-or- 
dinate branch of the Government, they were under a constitutional duty 
and obligation to furnish to either house the papers called for — unless,, 
as has happened in very rare instances, when thc^ request was coui)le(i 
with an appeal to the discretion of the President in resi)ect of the dan- 
ger of publicity, to send the papers if, in his judgment, it should not be 
incompatible with the public welfare. 

Even in times of the highest party excitement and stress, as in 1S26 
and 1844, it did not seem to occur to the Chief Executive of the United. 
States that it was possible that any official facts or information existing, 
either in the Departments created by law or within his own i^ossessiou, 
could, save as before stated, be withheld from either of the houses of 
Congress, although such facts or information soinetimes involved very 
intricate and delicate matters of foreign affairs, as well as sometimes 
the history and conduct of officer's connected with the administration of 
affairs. Thus, in 1826, when the Senate thought fit to pass a resolu- 
tion that, in considering whether the United States should be repre- 
sented in the Congress of Panama, the Senate ought to act with open 
doors, unless the publication of the documents referred to in debate 
would be prejudicial to existing negotiations, and that the Presideut be 
requested to inform the Senate whether such objection existed to the 
publication of the documents communicated by the Executive, and, if 
so, to specify the parts which would for that reason be objectionable, 
the Presideut replied that all the communications had been made to the 
Senate in confidence and proceeded to say, "Believing that the estab- 
lished free confidential communication between the Executive and the 
Senate onght for the i)ublic interest to be preserved unimpaired, I deem 
it my iiidispensable duty to leave to the Senate itself the decision of 
the question involving a departure hitherto, so far as I am informed, 
without exami)le, from that usage, and upon the motions for which, 
not being informed of them, I do not feel myself competent to decide," 
ftnd although in this instance there was no question in regard to the 
furnishing documents or papers, and the question was merely whether 
the Executive was bound to give an opinion to the Senate in such a case, 
twenty out of forty-four Senators present appear to have voted on the 
yeas and nays for the proposition that the President in such a case was 
bound to give such an opinion to the Senate. Among those twenty were 
Senators Benton, Cobb, Dickersou, Hayne, King, Macon, liandolph, 
Van Buren, and Woodbury,' and by a vote of 27 to 16 the Senate de- 
clared that it had " the right to publish communications so made and 
discuss the same with o[)en doors without the consent of the President 
when in their opinion the public interest may require such publication 
and such discussion." 

In 1842 the House of Representatives charged the select comraitte to 
inquire into the cause, manner, and circumstances of the removal of one 
St. Sylvester, late a clerk in the Pension Office, with power to send for 
l)ersons and papers. On the 27th of July, 1842, Mr. Garrett Davis 
reported to the House upon the subject, stating that the committee had 
requested the Secretary to furnish for its use a copy of the charges 
against Sylvester and a copy of the order dismissing him and copies of 
any other papers in the Department touching his removal. He quotes 
from the response of .the Secretary as follows: 

The letter dismisshift- Mr. Sylvester was made a. pnblle record of the Department, 
and I therefore transmit a copy of it herewith, agreeable to yonr request. There is 
no other paper of the description specified in your request or relating to the siiliject 
on- the files of this Dej)artmeut, nor is there any in my possession which is not of a 



!tr 



6 EELATIONS BETWEEN SENATE AND EXECUTIVE DEPARTMENTS. 

coufidentinl cliaracter. The faitlifnl discLarjve of the dnfies devolviiifij upon heads of 
Departmeut.s ffe(|uenily renders it of csseiitial importance to preserve contideutial 
coniii'UDicatioii.s they have received as snch, and prisate honor as well as public policy 
forbids that a ])ledge thus given should be violated. 

Everything in the files was produced without question. The House 
adjourned soon after this report, and no final action was taken upon 
tlie subject. This report is so valuable as a discussion of the general 
questions connected with patronage that the committee thinks it fit to 
append it to this report (Appendix B). It will be seen in this instance 
that there was no attempt on the part of the Secretary to deny the 
right of the House to have the inspection of all papers in the files of 
the Department, but he only put himself upon the ground that private 
and confidential communications that were not on the files of the De- 
partment ought not to be disclosed. On the .18th May, 1844, the Senate, 
in executive session, adopted a resolution directing the Secretary of the 
Treasury to communicate whether any and what sums of money had 
been drawn from the Treasury to carry into effect the orders of the 
War and Navy Departments, made since the 12th April of that year, 
for increasing the military force on the frontiers of Texas, &c. On 28tli 
of same month President Tyler sent a message to the Senate, stating 
that the Secretary had communicated the Senate resolution to him. 
He then says : 

While I cannot recognize this call thus made on the head of the Department as 
consistent with the constitutional rights of the Senate when acting iu its executive 
capacity, which iu such case can only properlj' hold correspoudeuce with the Presi- 
dent of the United States, nevertheless, from an anxious desire to lay before the Sen- 
ate all such information as may be necessary to enable it, with full understauding, 
to act upon any subject which may be before it, I herewith transmit communica- 
ticms whicli have been made to me by the Secretaries of War and Navy Departments 
in full answer to the resolutiou of the Senate. 

In this instance it will be seen that there is no intimation of a denial 
of the right of either house of Congress, in the exercise of its general 
jurisdiction, to have knowledge of papers in and acts of adepartmenf 
of the Goveriunent, bar only a claim that when such papers are wanted 
in the " executive capacity " of the Sen;itethey oughttobecalledforfiom 
the President direct. It mnst be sup])o.sed tliat President Tyler was ig- 
norant of the fact that such commands to heads of De|)artments liad 
been made by t!ie Senate continuously from the foundation of tlie Gov- 
ernment down to that time, and that those commands had been obeyed, 
or else he must have supposed that an unbroken and unchanged practi(^e 
of the Senate, under the Constitution, for more than half acentury, had 
been under a plainly erroneous impression of its rights, not only by it- 
self, but by the executive departments of the Governmtnt. It would 
seem to be too clear for argument, that whether the Senate chooses to 
conduct its business with closed doors or oj)en doors, is a matter en- 
tirely for its consideration and can have no relation to the obligation 
of the executive departments of the Government to respond to its call 
for pai)ers or information. 

On the 22d of May, of the same year, the Senate, on motion of Mr. 
Benton, requested the President to inform the Senate whether any en- 
gagement or agreement had taken place between the President of the 
CTuited States and the President of Texas in relation to naval or mili- 
tary aid or any other aid, and, if so, to communicate all the particulars 
and copies of the same, if in writing, and a copy of all communications 
on the subject; which information was furnished. 

On the 28th of May, of the same year, a similar resolution was passed, 
calling for a copy of the instructions given iu 1829 by President Jack- 



EELATION.S BETWEEN SENATE AND EXECUTIVE DEPARTMENTS. ( 

SOU, tlirou,!::b the Secretary of State, to the United States minister at 
Mexico on the subject of Texas; which was furnished. 

On the same L'Sth of May, ]<S44, on motion by Mr. Benton, tlie Senate 
called on the President for " the whole of the private letter from Lon- 
don, with its date, quoted by the Americau Secretary of State" iu a 
letter of his to tiie United States charge d'affaires iu Texas, together 
with the name of the writer of the private letter ; which iuformatiou was 
su])plied without protest. 

Numerous otlier instances occurred, about the same time of similar 
requests and similar compliances, too numerous, indeed, to justify in- 
sertion in this rejiort. 

The fact that the executive journals of the Senate have only been 
made public and printed down to the year 1828, and that the written 
journals since that time are uot indexed, makes it difficult to fiud all 
the instances of calls on the President and heads of Departments for 
information and papers that have occurred since that date, but the com- 
mittee feels safe in stating from the research ithas made that the course 
of the Government lias been constant and continuous and unchanged 
from the beginning until now, and that, in its belief, uo instauce within 
the principles and limitations before stated has occurred in which calls 
for official papers and tiles addressed either to the President in the form 
of requests or to the heads of Departments in the form of commands 
which have not been complied with, but it has sometimes happened 
where the request to the President was merely a conditional one, leaving 
it to his discretion whether the papers should be communicated or uot, 
that they have not been comi||unicated. 

On the Gth Decend)er, 18GG, when there was much irritatiou existing 
between the houses of Congress and the Executive, the houses of Repre- 
sentatives adopted a resolution directing the Postmaster General to 
communicate to the House information of all the postmasters removed 
from office between the 28th July, ISCtQ, and said 6th of December, to- 
gether with the reasons or causes of such removals, and the names of 
all ])ersons ai)pointed in their ])laces, &c. This command was, on the 
18th February, 1867, complied with by the Postmaster-General without, 
in the least degree, questioning the right of the House of Eepreseuta- 
tives to have that information. 

Two instaucis occurring during the administration of President 
Hayes, under circumstances when there would be naturally a disposi- 
tion on the paitof the Executive to stand n\H)u his constitutional rights, 
nfay be of interest. '. in the 9th January, 1879, the Senate ])assed a 
resolution directing the Secretary of the Treasury to transmit charges 
on file against the Supervising Iiispector-General of Steamboats and the 
papers connected theiewith ; which was also ])romptly complied with. 

At the same session a similar resolution called for papers on file iu 
the Treasury De])anment ''showing why Lieutenant Devereux was 
removed from the Revenue Marine fc^ervice," which was also com[)lied 
with. 

But it would seem to be needless to array further precedents out of 
the \ast mass that exists in the journals of both houses covering prob- 
ably every year of the existence of the Government. The practical 
construction of the Constitution in these respects by all branches of the 
Government for so long a i)eriod would seem upon acknowledged prin- 
ciples to settle what are the rights and powers of the two houses of 
Congress in the exercise of their respective duties covering every branch 
of the operations of the Government; and it is subniitted with confi- 
dence that such rights and powers are indispensable to the discharge 



8 RELATIONS BETWEEN SENATE AND EXECUTIVE DEPARTMENTS. 

of their duties, and do not infringe any right of the Execntive, and that 
it does not belong to either heads of Departments or to the President 
himself to takeiiJto consideration any suppo.sed motives or purposes that 
either house may have in calling for such papers, or whether their pos- 
session or knowledge of their contents could be a]>plied by either house 
to useful purposes. 

The Ooustitution of tlie United States was adopted in the light of 
the well-known history that even uiinisters of tlie English Crown were 
bound to lay before Parliament all papers when demanded, on pain of 
the instant dismissal of such ministers on refusal, through the rapid 
and effectual instrumentality of a vote of a want of contidence. And 
the Continental Congress had for more than ten years itself governed 
the country and luid control of all papers and records, not by reason of 
anything expressed in the Articles of the Confederation, but by reason 
of the intrinsic nature of free governmejit. The Jurisdiction of the two 
houses of Congress to legislate, and the power to advise or withhold 
advice concerning treaties ancl appointuients, necessarily' involves the 
jurisdiction to ofticially know every step aud action of the officers of 
the law and all the facts touching their ciniduct in the possession of iM\j 
Department or even in the possession of the President himself. There 
was no need to express such a power, for ir ^vas necessarily an iuherent 
incident to the exercise of the ])Owers granted. 

It will be observed that, in this instan(;e, the call for papers covered 
a period of more than six months, during whi(;h the regular incumbent 
of the office had been discliarging its duties, and also the further period 
of more than six months, during which the i)erson d(\><ignated to dis- 
charge those duties on suspension of tiff officer had been acting, and 
that that i)erson is the one now^ i)roposed to be appointed to the })lai;e. 

It will also be observed that the President has not undertaken to 
removetheincumbent of the office, but has only, in expressed and stated 
pursuance of the statutes on the subject, suspended that officer, and 
that the same statutes expressly provide tliat such officer shall not be 
removed without the advice aiul consent of the Senate, and that, if that 
advice and consent be not given, the incumbent would (unless his regu- 
lar term of office should have previously expired) at the close of this 
session of the Senate, be restored to the lawful light to exercise its 
duties. The Senate, then, by this nomination, is askt^l to advise and 
consent to the removal of the incumbent and to ilie appointment 
of the candidate proposed for his i)lace. In exercising its duty in re- 
spect of these questions it is plain that the conduct and management 
of the incumbent is a matter absolutely essential to be known to the 
Senate in order that it may determine whether it can rightly advise 
his removal, or rightly leave him to resume the functions of his of- 
fice at the end of its session, as well as whether the candidate 
proposed has, in the exercise of the office under his designation, so 
conducted himself as to show that he is competent and faithful. In- 
deed, it may be stated with entire accuracy, that even in the case of a 
vacancy in an office aud the proposed tilling of such vacancy, it is im- 
portant for the Senate to know the previous condition and management 
of the office, the state of its affairs, and whether there have been cases of 
misconduct or abuse of powers, the embezzleineiit of jnoney, and, in- 
deed, all the circumstances bearing upon its administration, in order 
that it may judge of the suitableness of appointing a particular person 
to take up its duties with reference to the dilticulties that mayexist 
in its affairs, the state of its accounts, and everything concerning its 



EELATIONS BETWEEN SENATE AND EXECUTIVE DEPARTMENTS. 9 

administration, so as to measure tlie fitness and competency of the par- 
ticnlur candidate to meet the emergencies of the case. 

It appears iron) the table lierewith submitted (Ai)i)endix A) that out 
of about fourteen liun(hed and eighty-five nominations sent to the Senate 
during the tirst thirty days of this session, tliat is, from the first Monday 
in December, 1885, to the 5th of January, 1880, six hundred and forty- 
three were nominations of persons proposed to be appointed in the place 
of officers suspended and proposed to be lemoved (and of whom it is 
known tliat some are soldiers), and in res])ectof whom the action of the 
Senate in advising and consenting- to the proposed a]ipointment would 
effect a removal, and in respect of whom the failure of the Senate to ad- 
vise and consent to such removals anri appointments the effect would be 
to restore them to the possession f)f tbeir offices at the end of the session, 
except in cases in which the terms of some of them should have pre- 
viously expired. 

Is it not desirable and necessary to the proper performance of its 
duties, and in every aspect of the ]»ublic interest, that the simple facts 
in regard to what the conduct of these otticials, as well as in regard to 
what the conduc*: of the persons designated to i)erform their duties has 
been, should be made known to the Senate"? Have these suspended offi- 
cials, or any'considerable number of them, been guilty of misconduct iu 
office, 01' of any personal conduct making them unworthy to be longer 
trusted with the performance of duties imposed upon them by law ? If 
they have, it wouhl seem to be clear tliat every consideration of public 
interest and of public duty would require that the facts should be made 
known, in order that the Senate may understandingly and prom[)tly ad- 
vise their removal, and that the most careful scrutiny sliouhl be had in 
respect of selecting their successors, as well as in respect of providing- 
better means and safeguards by legislation for administering the laws 
of the Diii'ed States. Sucl information, it woiild seem, the Executive 
is deteiiniued the Senate shall not possess, f ^r ihe alleged reason that 
it iniglit eiuible the Senate to understand what circumstances connected 
with the faithful execution of the laws induced the President to exer- 
cise the dis{;retion the-statute confers upon him to suspend them, and 
ask tiie Senate to unite with him in tlieir lemoval from office. A sim- 
ilar result would follow in respect of the knowledge of any and every 
step ill the transactions of the (Government; ^or instance, the President 
as commander ill-chirr of the Army has as lai^ge discretion as lu^ has 
in the susi)ension of civil officers, but on the theory suggested by the 
Attorney-General, both the President and the Secretary of Wai- would 
be justiiied in refusing to either house of Congress copies of pa})ers and 
documents relating to the administration of the Department of War, 
and the dis])ositi^)n of the troops, &c., for the reason that the facts be- 
ing disclosed, the two houses of Congress might be enabled to compre- 
hend the reasons and motives actuating the Executive in his conduct 
as commander-ill-chief. 

Eeduced to its simplest form, the proposition would be that neither 
the President nor the head of a Department is bound to communicate 
any official papers to either house of Congress which might draw into 
question in the minds of its members or of the people the wisdom or 
fairness of his acts. But the committee is of the opinion that in mat- 
ters of this nature the Senate has little concern with the reasons or mo- 
tives either of the heads of Dejjartments or of the Executive, but it has 
large concern that its own reasons and grounds of action should rest 
upon and be drawn from the solid truth. The Senate, if it does its duty 
and iireserves the independence that belongs to it, must act upon its 



10 EELATIONS BETWEEN SENATE AND EXECUTIVE DEPARTMENTS. 

own reasons and jadguient and not ni)on those of the President, liow- 
ever valuable they may be. If the truth regarding the conduct of tliese 
officials and designated persons were known the question for the Senate 
wouhl be, not what were the reasons or motives of the Executive, but 
whether the facts themselves, as they took place, would furnish it with 
sufficient reason for giviug or withholding its advice and consent to the 
proposed chauges. 

Another view of the matter is not, as the committee thitdis, without 
large importance to the public interest at this time. The President in 
his last annual message, and in connection with the subject of removing 
the ordinary administration of the laws and the selection of public 
agents from the arena of mere party politics, stated : 

I am inclined to think that tliere is no seiitiuieut iiioie general in the minds of the 
l>eople of onr country than a- conviction of the correctness of the principle njion which 
the law enforcing- civil-service reform is based. In its i)resent condition tlie law regn- 
iates only a part of the subordinate publii; positions tljrongbout the country. It ap- 
plies the test of fitness to applicants for these places by means of a competitive ex- 
amination, and gives large discretion to the Commissioners as to the cbaracter of the 
examination and nmny other matters connected with its execution. Tbus the rules 
and regulations adopted by the Conmiission Inive much to do with tbo x'luctical use- 
fulness of the statuie and with the results of its application. 

The people may well trust tiie Commission to execute the law with i)erfect fairness 
and with as little irritation as is possible. But of course no relaxation of the priuci- 
l>le which underlies it, and no weakening of the safeguards which surround it can he 
expected. Experience in its administratior, will probably suggest amendnient of the 
methods of its execution, hut I venture to hope that we shall never again be remitted 
to the system which distiibutes public positions purely as rewards for partisan serv- 
ice. DoTibts may wcdl he entertained whether our Government could survive the 
strain of a continuance of this system, which upon every chauge of administration in- 
spires an immense army of claimants for office to lay siege to the patronage of Gov- 
ernment, engrossing the lime of ])ublic ofticeis witli their importunities, spreading 
abroad the contagion of their disappointment, and filling the air with the tumult of 
their discontent. 

The allurements of an immense number of offices and places exhibited to the voters 
of the land, and the promise of their bestowal in recognition of nartisan activity, de- 
bauch the suffrage and rob political action of its thoughtful and deUberative charac- 
ter. The evil wouhl increase willi the multiplication of offices consequent upon our 
extension,' and the mania ibr office-holding, growing from. its indulgence, would jter- 
vad". our population so geuerallj' that patriotic purpos"--, the support i f y)riuciple, the 
desire for the public good, and solicitude for the nation's welfai'e, would be nearly 
banished from the activity of onr party contests and cause them to degenerate into 
ignoble, selfish, and disgraceful struggles for the possession ot office and public place. 

Civil-service reform enforced by law came none too soon to check T.he progress of 
demoralization. 

One of its effects, not enough regarded, is the freedom it hrings to the political ac- 
tion of those conservative and soi)er men wh(). in fear of the confusion and risk at- 
tending an arbitrary and sudden change in all the public offices with a changfe of 
party rule, cast their ballots against such a chance. 

Parties seem to be necessary, and will long continue to exist; nor can it be now 
denied that there are legitimate advantages, not disconnected with office-holding, 
which follow party supremacy. While iiartisansbip continues bitter and piouonm-ed, 
and supplies so much of motive to sentiment and action, it is not i'air to hold public 
oflScials, in charge of important trusts, responsible for the best restilts in the perform- 
ance of their duties, and yet insist that they shall rely, in confidential and important 
places, upon the work of those not only opposed t,o them in [lolitical affiliation, but so 
steejjed in partisan prejudice and rancor that they have no loyalty to their chiefs and 
no desire for their success. Civil-service reform does not exact this, nor does it re- 
quire that those in subordinate positions who fail in yielding their best service, or 
who are incompetent, should be retained simply because they are in ]dace. The 
whining of a clerk discharged for indolence or inconii)etency, who, though he gained 
his iilace by the worst possible operaticm of the spoils system, suddenly discovers that 
he is entitled to isrotection under the sanction of civil-st^rvice reform, represents an 
idea no less absurd than the clamor of the applicant who claims the vacant position 
as his compensation for the most questionable party work. 

The civil-service law does not prevent the discharge of the intlolent or incompetent 
clerk, hut it does prevent supplying his place with the unfit party worker. Thus, in 



RELATIONS BETWEEN SENATE AND EXECUTIVE DEPARTMENTS. 11 

both these phases, is seen benefit to the- pnbhc service. And the people who desire 
good goverameuf, having secured this statute, will nob relinquish its benehts without 
l^rotest. Nor are they uinniudful of the fact that its full advantages can ouly be 
gained through the complete good faith of those having its execution in charge. And 
this they ^^■ill insist upon. 

This liigbly important and valnable official coinnuiiiicatiori, in the 
presence of six hundred and forty-three sn.speiisions from office, would 
seem to lead to the conclusion that this number of the civil officers of 
the United States selected to be suspended and removed, had been so 
derelict in the performance of their functionsor guilty of such personal 
misconduct as to i)ut them in the category of unfaithful public servants, 
deserving dismissal by the President and the Senate and the condem- 
nation of their countrymen. In such a state of things we think that 
the common sense of justice and fair play that is so much prized, as we 
believe, by the people of the United States would require that in some 
way this large body of men should have an opportunity to know the 
s-ubstance of their alleged misdoings in order that they may either 
admit their guilt, or, denying it, explain their conduct, or show that the 
accusations against them were selfish and wicked pretexts, and set up 
for the mere purpose of obtaining their suspension and ultimate dis- 
missal from office in order that others less capable and worthy might 
at once receive the honors and emoluments of their places. It is known 
to every Senator that so far as the Senate has had to do, both with re- 
movals and api)ointments, it has for a great number of years been its 
practice, when any officer or person was before it for removal or ap[)oint 
ment against whom any serious accusation has been made which would, 
if true, intiuence the action of the Senate in the case, to cause the pei- 
son concerned to be informed of the substance of the complaint aganist 
him and gi\'e him an opportunity to defend liimself, and it is also known 
that at this very session a very considerable number of instances of 
that kind have oc^curred and are daily occurring. If the Senate is pro- 
ceeding upon a false principle in such instances, it is high time that its 
course in these resi)ects should be reversed, and that hereafter it slionld 
act upon such accusations without any knowledge other than that 
derived from the accusers, and to leave the victims of such injustice 
to console themselves with the reflection that all parties are now en- 
gaged in an effort to reform the Government. 

Why should the facts as they may appear from the papers on tile be 
suppressed ? Is it because that, being brought to light, it would a[»[)ear 
that malice and misrepresentation and perjury are somewhat abundant, 
or merely that faithful and competent and honorable olificers have been 
suspended and are proposed to be removed, under the advice and con- 
sent ol the Senate, in order that places may be found for party men 
because tliey are party men or are the special objects of i)arty favor "? 

How does it happen, in this time of suggested reform and- purer 
methods in Government, that for the first time it is thought important 
that the historic and administrative facts relating to tiae official and 
personal conduct of officers of the United States should be withheld, 
and that the administration of the Government should proceed with a 
secrecy and mystery as great as in the days of the Star Chamber ? 

The high respect and consideration that the Senate must always liave 
for the executive office would make it reluctant to adopt eitber theory. 
But at present the impenetrable veil remains, and as the committee is 
unable to suggest any other solution of the riddle, it must leave it until 
this veil is bfted and the operations of the Government shall again be 
known. 



12 EELATIONS BETWEEN SENATE AND EXECUTIVE DEPAETMENTS. 

In this state of things the committee feels it to be its clear duty to 
report for the consideration of the Senate and for adoption the follow- 
ing resolutions, namely : 

Resolved., That the foregoing report of the Committee on the Judici- 
ary be agreed to and adopted. 

Resolved, That the Senate hereby expresses its condemnation of the 
refusal of the Attorney-General, under whatever influence, to send to 
the Senate copies of papers called for by its resolution of the 25th of 
January, and set forth in the report of the Committee on the Judiciary, 
as in violation of his official duty and subversive of the fundamental prin- 
ciples of the Government and of a good administration thereof. 

Resolved, That it is, under these circumstances, the duty of the Sen- 
ate to refuse its advice and consent to proposed removals of officers, 
the documents and papers in reference to the sui)posed official or per- 
sonal misconduct of whom are withheld by the Executive or any head 
of a Department when deemed necessary by the Senate and called for 
in considering the matter. 

Resolved, That the provision of section 1754 of tlie Revised Statutes 
declaring — 

That persous houortibly discharged from the military or naval service by reason 
of disability resultiug from wounds or sickness incurred iu the line of duty, shall be 
preferred for appointments to civil offices, provided they are found to possess the busi- 
ness capacity necessary for the proper discharge of the duties of such office — 

ought to be faithfully and fully put in execution, and that to remove, 
or to propose to remove, any such soldier, whose faithfulness, compe- 
tency, and character are above reproach, and to give place to another 
who has not rendered such service, is a violation of the spirit of the 
law, and of the practical gratitude the people and Government of the 
United States owe to the defenders of constitutional libert^y and the 
integrity of the Government. 

All of which is respectfully submitted. 

GEO. F. EDMUNDS. 
JOHl!^ J. INGALLS. 
S. J. E. McMILLAK 
GEO. F. HOAR. 
JAMES F. WILSOK 
WM. M. EVARTS. 



Appendix A. 



The following statemeat will show the number of suspensions by the President of 
the United States as indicated by the Executive nominations delivered to the Senate 
during the first thirty days of the present session, being from the first Monday iu De- 
cember, 18b5, to January 5, 18S(J, both dates inclusive. 

Whole number of messages received during the time 1, 485 

The Judiciary : 

Chief justices of Territories 3 

Associate j ustices of Territories 7 

United States district attorneys 28 

United States marshals 24 

Total 62 



EELATIONS BETWEEN SENATE AND EXECUTIVE DEPARTMENTS. 13 

Finance : 

Assistant treasurer 1 

Superintendent mint 1 

Coiner mint 1 

Assayers mint 1 - 5 

Melters and refiners 2 

Collectors inte^-nal re\ enue ~ 61 

Total 71 

Director Mint (removed) 1 

Commerce : 

Collectors of customs 45 

Appraisers of merchandise 20 

Surveyors of customs 12 

Consuls . 57 

Consuls-general 5 

Examiners of drugs, &c 4 

Naval officers of customs 3 

Supervising inspectors of steam vessels 5 

Total 151 

Public Lands: 

Surveyors-general 7 

Receivers public money 20 

Registers land offices 24 

Principal clerk of surveys, General Land Office 1 

Total r)2 

Territories : 

Governors Territories 2 

Secretaries Territories 2 

Total 4 

Indian affairs: 

Indian inspectors :^ 

Indian agents 13 

Total 1(5 

Post-offices and post-roads: 

Postmasters 278 

Foreign relations : 

Secretaries of legations ^^ 3 

Pensions — 

Pension agents 6 

Grand total of suspensions 643 

Grand total of removal 1 



Appendix B. 

[House Eeport No. 945 ; Twenty-seventh Congress, second session. Removal from office of Henry H. 
Sylvester. To accompany Senate bill No. 549. July 27, 1842 ; laid upon the table.] 

Mr. Garrett Davis, from the select committee appointed on the subject, made 
the following report : 

The select committee cliarged hy the House to inquire into "tJie cause, manner, and circum- 
stances of the removal of Henry H. Sylvester, late a clerk in the Pnmon Office, ivith poiver 
to send for j)ir sons and papers, and to report hy bill, resolution, or othenvise," have per- 
formed the duties assigned to them, and beg leave to report cos follows : 

Mr. Sylvester having been removed by the Hon. John C. Spencer, Secretary of War, 
your committee thought it was proper to notify him of their proceedings, and therefore 



14 EELATIONS BETWEEN SENATE AND EXECUTIVE DEPARTMENTS. 

directed it« cliairman to inform bim of the readiness of the coniniittee to receive nuy 
communication which he might desire to make to it, to sunjmou and take the testi- 
mony of any witnesses he might wish to have examined, and to invite him to attend 
its meetings. In reply, the honorable Secretary informed the chairman that he did 
"not desire to make any communication to the committee, or to have any witnesses 
summoned by it, or to attend its meetings." 

The committee then made a request in writing, of the Secretary, to furnish for its 
use "a copy of the charges preferred against Henry H. Sylvester, also a copy of the 
order or letter dismissing him from office, and copies of any other papers in the De- 
partment touching his removal." 

In his response, the Secretary says: "The letter dismissing Mr. Sylvester was 
made a ^;)(/)?)c record of the Department, and I therefore transmit a copy of it here- 
with agreeably to your request." "There is no other paper of the description speci- 
fied in your re(piest, or relaiing to the subject, on the files of this Department, nor is 
there any in m>' jinsscssion which is not of a confidential character." "The faithful 
discharge of the duties dc.v(dved ni)on the heads of Dejiartments frequently remlers 
it of essential importance 1o preserve, Ak' confidential, commiiiiications made and re- 
ceived as such, and yuisati' honoi- as well as juiblic policy forbids that a pledge thus 
given should be vi(dated." 

This reply of the honorable Secretary exiuces somewhat more of interest in this 
proceeding ; and, though he argues his positions with great earnestness, your com- 
mittee are coistrained to protest against them, as unjust, ini])()litic, and immoral. 
What ate tluiv, but that the secret charges of (toncealed informers, however false and 
calumnious in fact, and from whatever selfish, impure, and dishonorable motives 
made, even alter they have effected the nefai ions purpose of removing a faithful 
officer, who, indeed, may be above all exception, officially and personally, are still of 
so ini])iirtant and SMcred a. clnaacteir, that " jirisate honor as well as ])ublic ])olicy " 
forbids that tlu^y should be revealed to a coniniittee of the House, I'aised for the pur- 
p(ise of investigating th<' causi^ of the removal of the parliciilar officer. 

Aie we innb'r a despotism, whern the best officers of the Government are to bo 
struck down — by, they know not whom, and for they know not what? And does the 
houoralile Secretary imagine that he is clothed wiih the authority and executing the 
functions of a Fouche ? That the House of Representatives, the grand inquest of the 
nation, invested by ihe Constitution with the power to impeach every officer of the 
Government, and consequently to supervise all their officbal acts, is to be told, by a 
Secretary, that the causes aud information upon which he bases his official conduct 
are of too much public interest and of too coufidential a character to be disclosed to 
i' 'I And this, too, when such information may be unmitigated falsehood, and when 
this official action involves the oppression of a subordinate, and malversation in office. 
The committee do not doubt the power and the right of Congress, and of the House 
of Representatives, to rend the veil that covers these trausactions in the Executive 
Depjirtindnts, to explore their most hidden recesses, and to drag to the light, and hold 
up to the nation every such case, in all its revolting deformity of untruth, tyranny, 
and corruption ; but it preferred the position assumed by the Secretary should remain 
undisturbed, that its enormity might be the more striking when examined in con- 
nection with the facts and circumstances attending the removal of Sylvester. 

The copy of the letter dismissing Sylvester, as transmitted by the Secretary of War 
to the committee, is as follows: 

Wak Department, Ajvil 9, 1842. 
Sir: From and after the 10th instant your services as a clerk in the office of the 
Commissioner of Pensions will be dispensed with. 
Your obedient, 

JOHN C. SPENCER. 
Mr. Henry Sylvester. 

The committee then proceeded to take the testimony, in writing, of sundry witnesses, 
which accompanies this report, and the substance of which is that on Wednesday, 
the 6th of April last, Mr. Spencer summoned Sylvester to appear before him, upon 
the charge that he had, on the Monday succeeding the confirmation, by the Senate, of 
the nomination of Powell to the consulship to Rio de Janeiro, in apublic company ex- 
pressed his belief that the gamblers had bribed the Secretary of State to procure the 
nomination of Powell. 

Sylv( ster denied the truth of this charge, and added that this imputation upon Mr. 
Webster had been the subject of general remark and conversation in this city. Wlieie- 
npon Mr. Spencer observed to Sylvester that he had nothing further at present, aud 
if he should have thereafter Sylvester should hear from him again. On the succeed- 
ing Saturday Sylvester was informed, by a messenger in the Department, that the 
Secretary had sent to the Pension Office for him, after office hours the preceding even- 
ing. He imnndiately went to Mr. Spencer's office, aud was informed that he was 



RELATIONS BETWEEN SENATE AND EXECUTIVE DEPARTMENTS. 15 

out. Sylvester returiK-d in about two hours, and requested the chief clerk to in- 
form Mr. Spencer that, in obedience to the jne^sajje sent him, he was in attendance. 
The chief clerk stepped into the Secretary's room, and after a few minutes returned 
and informed Sylvester that the Secretary did not wish to see him, and thereupon 
handed him the letter by which he was dismissed from his place. It is proven hat, 
on the Tuvceding Sunchiy morniu<;-, Powell's appointment, and the slander aiiaiust Mr. 
Webster in connection ^Yith it, were the topics of convei'sation among several pei'sons 
of -whom Sylvester was not one; and early the next morning (Monday), to US'- the 
expressive phrase of a witness, "were in the mouth of everybody." 

Sylvester having learned that the honorable Daniel Webster had procured his dis- 
missal upon the allegation that he had made or indorsed the calumny against him in 
relation to the nomination ot Powell, and, being informed by a friend that thePresideut 
had said if he would satisfy Mr. Webster he should be reinstated, or otherwise ]iro vided 
for, wrote a letter to the honorable Mr. Bates, of the Senate, in which he denied ever 
having made this imputation against Mr. Webster; and averring that, on the con- 
trary, he had several times, and whenever he had conversed upon the subject, de- 
fended the Secretary of State against it. He procured written statements from four 
gentlemen showing that such had been his exculpation of Mr. Webster in conversa- 
tions with them, severally, the day preceding and the day when he was said to have 
made the charge ; and he procured Mr. Bates to wait on Mr. Webster, and prtsseut to 
him as well those statements as his own letter to Mr. Bates. Mr. Webster declined 
to read these papers, and expressed his full belief in the truth of the information, 
which he said he had received that Sylvester had made the charge against him. 

The committee have examined Sylvester, and he swears that he never made, nor 
intended to make, any such imputation against Mr. Webster; but, on the contrary, 
upou the faith of information which he had obtained, he repeatedly, and whenever he 
spoke upon the subject, defended him against it, and all improper conduct in connec- 
tion with the nomination of Powell. 

William A. Williams proves that on the Sunday morning succeeding the confirraa- 
tiou, by the Senate, of Powell, he and several others were expressing their surprise at 
the nomination ; and some one having remarked that '• Mr. Webster knew how it was 
done," Sylvester denied that Mr. Webster had anything to do with the nomination. 

George W. Crump, chief clerk in the Pension Office, John T. Cochran, a clerk in the 
War Department, and Henry M. Morht, esq., prove, that early on the next day, (Mon- 
day), being the day on which Sylvester was said to have used the language concern- 
ing Mr. Webster for which the Secretary at War had arraigned him, in separate con- 
versations with each of them, Sylvester had expressly exonerated and defended Mr. 
Webster against this charge. 

Upon a deliberate consideration of this branch of the testimony, your committee are 
altogether satisfied that Sylvester was innocent of having made or indorsed the cal- 
iimny against Mr. Webster. His explicit denial, and the evidence he adduced, and 
w.hich established reasonabl}' the negative, ought to have satisfied both Mr. Spencer 
and Mr. Webster that he was guiltless ; and his dismissal by the Secretary of War, 
for this cause, and in the manner of it, was unjust, capricious, and oppressive treat- 
ment. 

As an officer, Sylvester was expf rienced and capable, assiduous and faithful; as a 
man, he was modest, respectfn], honorable, and moral; as a political partisan, he 
was neither noisy, obtrusive, nor intolerant. In all these points he might well be 
held up as an example to his superiors in place. The testimony by which his high 
personal and official character is sustained is abundant and most satisfactory. It is 
given by General Eaton, a former Secretary of War; by Genei'al Parker, chief clerk 
in the War Department ; by Colonel Edwards, the Commissioner of the Pension Bu- 
reau, and by Crump, Cochran, Rice, and Evans, clerks of the W^ar Department. These 
men have known Sylvester long and intimately, and, at the ijeril of their places, in 
their testimony, they do him justice, though some of them seemed to feel that, for this 
cjiuse, they too might be victimized. They all know full well that the most perfect 
knowledge and attentive |)erformance of the duties of their offices, the greatest fidel- 
ity to the Government and the country, the most respectful deportment to their su- 
periors, and the utmost rectitude of conduct and character, when connected with 
any degree of independence of political seiitinujnt, however quietly and unobtrusively 
maintained, give no assurance of continuance in place. Your committee know no 
portion of the American population which is more oppressed and enslaved in will and 
spirit than the suboixlinates in the Executive Departments; none among whom there 
is more mental suffering, arising from a constant dread of being visited with the petty 
proscription of some small tyrant, "clothed with a little brief authority," by which 
they and their families are to be deprived of their support. It was the duty of Mr. 
Spencer, and would have been his pride, had hp been animated by sentiments of jas- 
tice and magnanimity, to have protected such a subordinate as Sylverster. 

It would seem quite improbable that the avowed cause, denied and refuted as it 
was, n\)ini which the two Secretaries professed to act, could have rendered the ire of 



r* 



16 EELATIONS BETWEEN SENATE AND EXECUTIVE DEPARTMENTS. 

Mr. Weltster against Sylvester so implacable. He attributes the dee]i resentment of 
the Secretary of State to these traBsactions. The bi'other-iu-law of Sylvester (the 
Hon. Mr. Hubbard, of New Hampshire) became the security of Mr. Webster, some few 
years since, to one of the banks in this city for upwards of $8,000, and duriu^the last 
summer, with a view to meet a part of the debt, Mr. Hubbard drew upon Mr. Webster 
for a sum of money infavor of Sylvester, and requested him to collect and apply it 
according to instructions. Sylvester undertook tiiis commission for liis kinsmau, and, 
by note, adA'ised Mr. Webster that he held such a draft. 

In reply, the honorable Secretary of State requested to see Sylvester upon this sub- 
ject at his office. The latter attended accordingly, and yet a second and a thiid time, 
before he could obtain an interview. Mr. Webster tht-n evinced his disi>leasure by 
discourteous and uncivil conduct, neither responding to the ordinary salutation on 
the part of Sylvester nor asking him to take a seat. Some time afterwards Mr. Hub- 
bard inclosed Sylvester another draft for a small amount on Mr. Webster and impor- 
tuned him to collect it. Declining to expose himself again fo such Ireatment as he 
had previously received from Mr. Webster, Sylvester indorsed it and inclosed it in a, 
note to him, with a request of payment, but never heard afterwards of the draft or 
the money. Sylvester communicated these facts to Mr. Hubbard, and, in December 
last, he was directed by him to hand Mr. Webster's note over to Mr. Mortit, an attor- 
ney, for collection, with a proposition that, if Mr. Welister would pay $1,000 the re- 
mainder might run for a specified time; otherwise suit to be bronght upon it. An 
arrangement was at length adjusted by which Mr. Webster was to pay $1,000 on the 
1st ot January last, at the Commercial Bank of Boston, and he accordingly drew for 
that amount in favor of Hubbard ; but he neither had nor placed any funds in bank 
to meet his paper, and, at maturity, it was dishonored. Sylvester says that he spoke 
freely of these matters, and of this, he doubts iiot, Mi'. Webster was informed. 

But whatever other reasons may have operated in the removal of Sylvester; it is not 
to be doubted that the ordinary one of nuiking a place for a political friend and par- 
tisan had its full force. His successor is Mr. F. H. Davidge, whose name had been 
before the President for an apxjomtment since the 4th <»f March, lb'41. John B.Jones, 
editor of the Madisoniau, proves that Mr. Davidge had been writing for his paper, and 
that some of his contributions were on hand when he received this ai)pointment, and 
were afterwards inserted ; but that the President then requested him to dispense with 
the further services of Mr, Davidge as a writer for the Madisonian, which he did. 
Here is the mode by which office seekers qualify themselves for places under this ad- 
ministration. They come to this city and have their names thrown before the Presi- 
dent for an appointment; they t-ommence writing for the Madisonian, under his sur- 
veillance, and, after having gone through the probation, and established their fitness 
f(ir office by inditing stupid panegyrics upon the President and coarse ribaldry upon 
the majority in Congress, to be published in the court journal, are duly installed into 
place, is such the purpose for which the offices of this Government were created, 
and such the principle upon which they are to be filled? What becomes of the mes- 
sage of the President, and of his proclamation, through the Secretary of State, against 
the interference of all office holders in politics? Where is thepotency of his emphatic 
quotation to them, forbidding active partisanship, "thus far thou comest, but no 
farther!'' Mr.- Davidge eniered a novice into the Pension Bureau, and merely per- 
forms a portion of the duties which had been previously done by another clerk, Evans; 
and the only result of his labors is to relieve Evans of an occasional press of business ; 
yet he receives a salary of $1,400 and Evans but $1,200 It appears, also, that a son 
of Mr. Davidge has received a clerkship in one of the Departments. 

Mr. Madison, in his speech in the House of Representatives in 1789, on the power 
of removal from office by the President, says: "The danger, then, consists merely in 
this — the President can displace from office a man whose merits i-equire that he should 
be continued. What will be the motives which the President can feel for such abuse 
of his power, and the restraints to prevent it f In the first place, he will be impeach- 
able by this House, before the Senate, for such an act of malversation; for I contend 
that tile wanton removal of meritorious officers would subject him to impeachment 
and removal from his own high place." The committee concur fully in the soundness 
of Mr. Madison's opinion of the responsibility of the President for such an abuse of 
power, and they do not doubt that this principle applies to all officers of Government 
who are invested with the discretion of removing others. They believe that the hon- 
orable John C. Spencer has been guilty of this official malversation in displaciiig 
Sylvester, and they would not hesitate to recommend to the House to impeach him 
before the Senate, but that he is in some degree excused by similar abuses, which 
have so often occurred in the administration of the Executive department during the 
last thirteen years. 

But the case of Sylvester is another of the numerous instances, which warns us of 
the enormity and tlie danger of suffering the President and his Departments to wield 
this formidable power unchecked, and without the least effective responsibility. It, 
with hundreds of others of equal atrocity, cries alond to Congress to interpose a rem- 



EELATIONS BETWEElN SENATE AND EXECUTIVE DEPAETMENTS. 17 

edy, as well to prevent a vast mass of individual oppression, as to uphold purity in 
the administration of the Government and the public liberty. The practice of treat- 
ing all the offices of this great Government as " the spoils of victory," and, with the 
rise and fall of contending parties, the ejection of a large multitude of experienced, 
honest, and capable incumbents, to make room for needy mercenaries, who eutered 
the political conflict without any principle or love of country, but impelled wholly by 
a hope of plunder, is" the greatest and most threatening abuse that has ever invadedj 
our system. It makes the President the great feudatory of the nation, and all offices 
fiefs, whose tenure is suit and service to him. It is because all those fiefs are at his sov- 
ereign will, to be confirmed or granted anew after each Presidential election, that the 
whole country is kept perpetually convulsed by that oft-recurring and all-absorbing 
event. 

Suppose the successful candidate for this high office had as many real estates, dif- 
fused over this Union, as there are offices of Government, those estates producing an- 
nually a revenue equal to the salary of each office, and he had the power to bestow 
and reclaim them at pleasure, would not the possession, by the President, of such a 
■«ast means of operating upon the will and controlling the actions of an imujense num- 
ber of the people of this country, scattered everywhere over it, fill all with a dread 
apprehension of the overthrow of our iustit utions and of popular liberty ? The Pres- 
ident has all this tremendous power, in fact, and in the much more dangerous form 
of bestowing public offices, according to the provisions of the Constitution and laws, 
seemingly for the exclusive good of the people, and to conduct the necessary opera- 
tions of the Government. The extent to which it is liable, and, in truth, has been 
abused, some of the most powerful minds which the country has ever produced have 
delineated with a vigor and vividness that must strongly impress the most careless, 

In 1826 Mr. Benton made a report to the Senate, embracing, in part, this subject, 
which ought to be carefully read by every American. In that paper we find this 
powerful passage: "The. King of England is ' the fountain of honor;' the President 
of the United States is the source of patronage. He presides over the entire system 
of Federal appointments, jobs, and contracts. He has power over the 'support' of 
the individuals who administer the system. He makes and unmakes them. He 
chooses from the circle of his friends and supporters, and may dismiss them, and, 
upon all the principles of human actions, he will dismiss them as often as they disap- 
point his expectations. There mav be exceptions, but the truth of the general rule 
is proved by the exception. The iutended check and control of the Senate, without 
new constitutional or statutory provisions, wilT cease to operate. Patronage will 
penetrate this body, subdue its capacity of resistance, chain it to the car of power, 
and enable the President to rule as easily and much more securely with than without 
the nominal check of the Senate. 

" If the President himself was the officer of the people, elected by them and responsi- 
ble to them, there would be less danger from this concentration of all power in his 
hands ; but it is the business of statesmen to act upon things as they are, and not as 
they would wish them to be. We must look forward to the time when the public 
revenue will be doubled; when the civil and military officers of the Government will 
be quadrupled ; when its influence over individuals will be multiplied to an indefinite 
extent ; when the nomination of the President can carry any man through the Senate, 
and his recommendation can carry any measure through the two houses of Congress ; 
when the principle of public action will btt open and avowed — the President wants 
my vote, and I want his patronage ; I will vote as he wishes, and he will give me the 
office I wish for. What will this be but the government of one man ? And what is 
the government of one man but a monarchy? Names are nothing. The nature of a 
thing is in its substance, and the name soon accommodates itself to the substance." 
"Those who make the President must support him. Their ijolitical fate becomes 
identified, and they must stand or fall together. Right or wrong, they mast support 
him," &c. All this was prophecy then ; it is now history. 

In the year^ 1835 Mr. Calhoun took up the subject of Executive patronage gener- 
ally, and subnutted to^fhe Senate a measure for its reduction, accompanied by a 
most elaborate and able reiiiort. Upon this branch of the subject he says : 

"It is onljr within tlieTasTIour years that removals from office have been intro- 
duced as a system ; and, for the first time, an opportunity has been aflforded of test- 
ing the tendency of the practice, and witnessing the mighty increase which it has 
given to the force of Executive patronage, and the entire and fearful change, in con- 
junction with other causes, it is elfecting in our political system. Nor will it require 
much reflection to perceive in what manner it contributes to increase so vastly the 
extent of Executive patronage." 

"So long as offices were considered as public trusts, to be conferred on the honest,- 
the faithful, and capable, for the common good, and not for the benefit or gain of the 
incumbent or his party, and so long as it was the practice of the Government to con- 
tinue in office those who faithfully performed their duties, its i>atronage, in point of 
fact, was limited to the mere power of nominating to accidental vacancies or to newly 

S. Kep. 135 2 



18 EELATIONS BETWEEN SENATE AND EXECUTIVE DEPAETMENTS. 

created oflSces, and would, of course, exercise hut a moderate influence, either over 
the body of the community or over the officeholders themselves ; but when this prac- 
tice was I'eversed — when offices, instead of being considered as public trusts, to be 
conferred on the deserving, were regarded as the spoils of victory, to be bestowed as 
rewards for partisan service — it is easy to see that the certain, direct, and inevitable 
tendency of such a state of things is to convert the entire body of those in office into 
corrupt and supple instruments of power, and to raise up a host of hungrj^, gieedy, 
and subservient partisans, ready for every service, howevpr base and corrupt. Were 
a premium offered for the best means of extending, to the utmost, the power of pat- 
ronage ; to destroy the love of country, and to substitute a spirit of subserviency and 
man worship ; to encourage vice and to discourage virtue ; and, in a word, to prepare 
for the subversion of liberty and the establishment of a despotism, no scheme more 
perfect could be devised; and such must be the tendency of the practice, with what- 
ever intention adopted, or to whatever extent pursued." 

The remedy proposed, both by Mr. Benton and Mr. Calhoun, to reduce this inordi- 
nate power, was to p'ass a law repealing the section of the act of 1820 which limited 
the appointment of certain officers to four years ; and, also, requiring the Presiden<), 
■when he removed any officer, to lay the cause of his removal, at the time of nominating 
his successor, before the Senate. 

Mr. Webster supported this measure of Mr. Calhoun's in a speech of unsurpassed 
ability, in which he said : 

" I concur with those who think that, looking to the present, and looking also to 
the futui-e, and regarding all the probabilities of what is before us, as to the qualities 
■which shall belong to those who may fill the Executive chair, it is important to the 
stability of Government and the welfare of the people that there should be a check 
to the progress of official influence and patronage. The unlimited power to grant 
office, and to take it away, gives a command over the hopes and the fears of a vast 
multitude of men. It is generally true that he who controls another man's means of 
living controls his will. Where there are favors to be granted, there are usually 
enough to solicit for them ; and when favors, once granted, may be withdrawn at 
pleasure, there is ordinarily little security for personal independence of character. 
The power of giving office thus affects the fears of all who are in and the hopes of all 
■who are out. Those who are out endeavor to distinguish themselves by active political 
friendship, by warm personal devotion, by clamorous support of men in whose hands 
is the power of reward ; while those who are in, ordinarily take care that others shall 
not surpass them ih such qualities or such conduct as is most likely to secure favor. 
They resolve not to be outdone in any of the works of partisanship. The consequence 
of all this is obvious. A competition ensues, not of political labors, not of rough and 
severe toils for the public good, not of manliness, independence, and public spirit, 
but of complaisance, of indiscriminate support of Executive measures, of pliant sub- 
serviency, and gross adulation. All throng and rush together to the altar of man. 
worship, and there they offer sacrifices and pour out libations till the thick fumes of 
their incense turn their own heads, and turn also the head of him who is the object 
of their idolatry. 

" Sir, we cannot disregard our own experience. We cannot shut our eyes to what 
is around iis and upon us. No candid man can deny that a great, a very great change 
has taken place, within a few years, in the practice of the Executive government, 
which produced a corresponding change in our political conilition. No one can deny 
that office of every kind is now sought with extraordinary avidity, and that the con- 
dition, well understood to be attached to every office, high or low, is indiscriminate 
support of Executive measures, and implicit obedience to Executive will. For these 
reasons, sir, I am for arresting the further progress of Executive patronage, if we can 
arrest it. I am for staying the further contagion of this plague." 

This extract is fraught with momentous truths, and some of the gravest of them 
are enforced by the present political position of the intellectual giant who gave them 
utterance. When he illustrates them, not less by his own lamentable example than 
by the graphic vigor with which he has stated them, who can refuse to give heed to 
the solemn lesson which they teach ? 

Mr. Clay also gave the same measure his earnest support, and, in the course of his 
argument on i he occasion, he said : " We can now deliberately contemplate the vast 
expansion of Executive power under the present administration, free from embarrass- 
ment. And is there any real lover of civil liberty who can behold it without great 
and just alarm? Take the doctrines of the protest and the Secretary's report to- 
gethei', and, instead of having a balanced Government, with three co-ordinate depart- 
ments, we have but one power in the state. According to these papers, all officers 
concerned in the administration of the laws are bound to obey the President. His 
will controls every branch of the administration. No matter that the laws may have 
assigned to other officers of the Government specially defined duties; no matter that 
the theory of the Constitution and the law supposes them bound to the discharge of 
those duties according to their own judgment, and under their own responsibility, 



RELATIONS BETWEEN SENATE AND EXECUTIVE DEPARTMENTS. 19 

and liable to impeachment for malfeasance ; the will of the President, even in oppo- 
sition to their own deliberate sense of their own obligations, is to prevail, and expul- 
sion from office is to be the penalty of disobedience." 

"The basis of this overshadowing superstructure of Executive power is the power 
of dismission, which it is the object of oue of the bills under consideration somewhat 
to regulate, but which, it is contended by the supporters of the Executive authority, 
is uncontrollable. The practical exercise of this power, during this administration, 
has reduced the salutary co-operatiou of the Senate, as approved by the Constitution, 
in all appointments, to an idle form. What avail is it that the Senate shall have 
passed upon a nomination if the President at any time thereafter, even the next day, 
whether the Senate be in session or vacation, without any known cause, may dismiss 
the incumbent ? Let us examine the nature of this power. It is exercised in the re- 
cesses of the Executive mansion, perhaps upon seoret information. The accused ofii- 
cerisuot present or heard, nor confronted with the witnesses against him, and the 
President is judge, juror, and executioner. No reasons are assigned for the dismission, 
and the public is left to conjecture the cause. Is not a power so exercised essentially 
a despotic poiver ? It is adverse to the genius of all free government, the foundation 
of which is responsibility. Responsibility is the vital principle of civil liberty, as ir- 
responsibility is the vital principle of despotism. Free government can no more exist 
-without this principle than animal life can be sustained without the presence of the 
atmosphere. But is not the President absolutely irresponsible in the exercise of this 
power? How can he be reached ? By impeachment ? It is a mockery." 

How is this corrupting and tremendous power to be bridled? All the great men 
who advocated the measui'e of Mr. Benton and Mr. Calhoun, whilst they maintained 
it would effect much good, conceded it would be a very inadequate remedy. In the 
opinion of your committee, a more effective one would be for Congress to pass a law 
repealiug tie limitation to office under the law of 1820, and requiring all officers hav- 
ing the power to dismiss a subordinate to furnish each person removed from office 
with the cause, in writing; and also to report forthwith the name of the officer, and 
the cause of his remove to the President; and that the President, at the ensuing 
session of Congress, repox^ Xp each House a full list of ail officers removed since the 
preceding session, with the ca'vv«<*c^ severally, of their removal ; _andj _also, that the^ 
Senate assert and maintain its coi. ^*:utional right to concur or to refuse to concur In 
the removal of every officer to whosb .i^omiuatiou it has advised and consented. As 
to the first branch of this projiosition, tut^re can be no doubt of the power of Congress 
to establish it by law. The second section of the second article of the Constitution 
provides : " But the Congress may by law vest t^l'a appointment of such inferior officers 
as they think proper in the President, in the courts of law. or in the heads of De- 
partments." 

If Congress were to pass, as it has passed, many such laws, thus vesting the appoint- 
ment of inferior officers, it could prescribe a particular mode for their removal, and 
any other conditions that might be thought proper. The justice and sound policy of 
tJiat condition is undeniable. All offices are created exclusively for the convenience 
and benefit of the people ; and, whilst none belong to the incumbent, certainly none 
belong to the incumbent of any other office. No removal should ever take place ex- 
cept when the public ueal requires it; and whenever and wherever such is the state 
of the fact, there is a specific cause why it is so. If there be no such cause, no re- 
moval ought to be made, as, independent of its generally dangerous and corrupting 
tendency, it might be both unjust to the individual officer and detrimental to the 
public service. There might be no cause, and yet oue might be falsely assumed ; 
wherefore, the officer exercising this power ought to be required to set forth to the 
person dismissed the ground of the proceeding, that he, knowing its truth or its false- 
hood, might have an opportunity to arraign his superior for an abuse of power, both 
before the country and Congress. All such cases ought to be reported to Congress, 
that it might know how a power which it had authorized was executed, and that it 
might correct and punish its perversion. 

Why should there be any secrecy in these matters? Secrecy is not an element of 
our system — its great aud fuudamental law is public opinion; and how can this be 
wisely aud justly formed wheu the facts which are rfecessary to enlighten it are con- 
concealed as '■^ state secrets'?" It is only falsehood and corruption, wrong and oppres- 
sion, that are sought to be wrapped in darkness ; the officer who means and acts well 
dreads not the sunlight. There may be rare cases, where secrecy in the removal of 
public officers would promote the public good; but the mischief and immorality in- 
separable from such a system will preponderate a thousand fold. 

The clause repealing the section of the act of 1820 which limits the appointment, 
of certain officers to four years, it is also believed, will be of great practical utility. 
All those officers at the termination of that period are, by operation of law, removed 
for the President, without any act on his part ; and he may commit the greatest im- 
proprieties in filling the vacant places without incurring any liability for the dis- 
placement of faithful public agents. This regulation swells considerably his power, 



20 EELATIONS BETWEEN SENATE AND EXECUTIVE DEPAETMENTS. 

as it makes a great many vacancies with the certainty of the returning year, and 
subjects the incumbents more inexorably to his will than if the exertion of the power 
of removal were a preliminary operation. Such repeal would, besides, add somewhat 
to the permanency and certainty of the tenure by which office would be held ; and 
such tenure should at least be as certain and permanent as the fidelity and fitness of 
the officer. 

But warped from some of its most essential and fundamental principles, as our Gov- 
ernment has been, by the vast accession to the power of the Executive, the only mode 
by which it can be demonarchized is to return to that great conservative piinciple of 
the Constitution, that the President, by his single action, cannot permanently and ab- 
solutely displace any officer. He is made the depository of the executive j^oiver, and the 
whole executive potver of our Government — not an indigested and vague executive power — 
not that of France, or of England, of Eussia, or of Turkey, of this age, or of any past 
one, but as it is defined, established, organized, and circumscribed by our own Con- 
stitution ; and he cannot, without usurpation, wield one particle more. Our fathers 
conceived and fabricated their own edifice of Government ; they mixed and com- 
pounded different principles, but they made the structure complete after its own order. 
The ideas attached to the phrases "legislati v^e powers," "executive power," and 
"judicial power," as used in our Constitution, are unique, and their significance is 
only to be learned correctly as they are taught in that instrument. 

There are certain powers of our Government that are purely legislative others purely 
executive and others ^miely judicial ; and there are certain other powers that belong to 
neither of those classes ; and because they are to be exercised by one of the depart- 
ments, or a branch thereof, does not make them legislative, executive, or judicial. 
The House of Eepresentives may impeach officers of the Government; and, when the 
electors fail to elect the President, is to choose that officer, and yet neither of these 
acts is of a legislative character. The President, by and with the advice and con- 
sent of the Senate, is clothed with the full appointing power. The function of the 
Senate to approve or reject the President's nominations is 5 jt legislative; nor is it 
executive in our system, because, to be so, it must appertain to the President. Neither 
is the act of nominating to officean executive power, or Indeed, of itself, anypotver; it 
is merely a constituent, au element of a power, to l,^ furnished by the agency of the 
President, as the other constituent is to be proj^^.ced by the action of the Senate. If 
the President's nomination be rejected, nothing has been effected by it ; both must 
concur and combine to constitute a power, a faculty in the business of the Govern- 
ment. 

From these plain princiijles it is apparent that theoretical constructions of the pro- 
visions and povvers of our Constitution, by analogies drawn from other Governments, 
are very liable, as they have led to great en ors ; and, as a general rale, it is much 
safer to construe our Constitution of itself, and by itself, especially as it is a Gov^ 
ernment, not of original and plenary, but'of delegated and limited, powers. Though 
the power of appointment, in our peculiar system, is given conjointly to the President 
and the Senate, yet their action is separate and independent, and each equally neces- 
sary to effect the result. The " advice and consent " of the Senate is as indispensable 
as the nomination of the President to fill an office. 

-^ The Constitution is wholly silent upon the subject of removals from office, except 
by impeachment ; and if another and more sumnuiry mode of displacing a faithless or 
incompetent officer is necessary and proper to secure a dtie execution of the laws, the 
position might be very plausibly assumed that the mode would involve an implied 
legislative powei-, and was therefore vested in Congress. This position would be 
strongly supported by quoting from the Constitution: "Congress shall have power 
to make all laws which sball be necessary and proper for carrying into execution the 
foregoing powers, and all other powers vested by this Constitution in the Govei-nment 
of the United States, or in any department or office thereof." But the more general 
opinion seems to be tbat the power of appointment implies and carries along with it 
the power of removal. That a power to create imports the power to destroy may be 
assumed to be a general truth, both in logic and philosophy ; and this principle would 
lead directly to the conclusion that the power of appointment and removal are blended, 
but for the clause in the Constifution before quoted. However, the committee will 
not further controvert the general judgment on this point. 

It is believed that there are but few statesmen or jurists in our country but who 
concede that an officer cannot be constitutionally removed by the President without 
the concurrence of the Senate, and that practice and pretty general acquiescence 
alone sanction the contrary doctrine. In the case of Hennen ex parte, the Supreme 
Court have decided that Congress had authorized the United States district courts to 
appoint their clerks, and, "in the absence of all constituHonal provision or statutory 
regulation, it would seem to be a sound and necessary rule to consider the power of re- 
moval as incident of the power of appointment." The judgment of the court, conse- 
quently, was, that the district court could, at pleasure, remove its clerk. Here is a 
recognition of the general principle, by the highest judicial tribunal of the nation; 



EELATIONS BETWEEN SENATE AND EXECUTIVE DEPARTMENTS. 21 

and it is strictly ay)plicable to the question now under examination, because tliere is 
no clause in the Constitution, except that which establishes and regulates the power 
of appointment, from whence a power of removal, in any mode exceiJt by impeach- 
ment, can be deduced. 

In the execution of this auxiliary power of removal, it would be just as logical for 
the Senate to contend for an exchisive right to remove from office as that the Presi- 
dent should; for either to do so would be equally paradoxical. The power which is 
implied and incidental njust be congruous with the express and the principal power; 
and it is absurd to say that though both the President and the Senate must combine, 
by distinct and independent operation, to effect a certain act, yet that Ite, in the exer- 
cise of a faculty only inferre<l from what he is expresslji authorized to do, may, the next 
hour and at all times afterwards, reverse and abrogate tbe joint act of himself and the 
Senate. The political effect would be yet more preposterous. The Senate is expressly 
established by the Constitution as a check upon the President in the execution of the 
appointing power. If the power of removal be accorded to him absolutely and exclu- 
sively, it practically destroys tbis restraint, and the power expresdy conferred upon 
the Senate becomesto be expunged by the implied power of the President. Whenever 
an officer refused to submit to his will, and to carry out his culpable objects, or, from 
any cause, was obnoxious to him, he would immolate him by his osvn stern fiat; and 
the utmost the Senate could do would be to force him to nominate a succession of his 
favorites and tools. The framers of the Constitution did not do their work after this 
manner. 

The connection between the President and the Senate, in the appointing power, 
continues in all its forms, whether express or incidental. So, if thn Constitution 
had required the approval of the House of Representatives also, of the President's 
nominations to office, the power of removal would have been incidental to the Presi- 
dent and the two houses of Congress, and all would necessarily have to concur to 
dismiss an officer. The implied power is to the principal and express one what the 
shade is to the substance ; when the latter exists in a duplicate form, the former can- 
not be single, but is stamped with and I'epresents the perfectfigure of the thing which 
gives it existence. We are examining what the Constitution is, not what it ought to 
be; and yet, with the construction which we give it, we are prepared to maintain 
that it is exactly what it should be. 

It was during the first session of the first Congress under our Constitution that a 
legislative construction was given to that instrument, which vested the power of re- 
moval in the President alone. Such members of the convention as were then in Con- 
gress were equally divided on this (then new) question. Washington was the man 
to whom the power was to be accorded or denied. The Senate was equally divided, 
and its decision. was rendered by the casting vote of the Vice-President ; whilst the 
majority in the House was not large. The pure minds of those who maintained the 
position that this was an Executive power, and belonged to the President exclusively, 
could not conceive the flagitious abuse that has since marked its exercise ; and if, 
after all the impressive admonition of subsequent experience, the men who estab- 
lished that unfortunate heresy could be recalled' from the tomb to consider the ques- 
tion now for the first time, it is impossible to doubt that they would settle it dilfer- 
eutly. 

The considerations then urged in support of the position, that this power was ap- 
pendant to the Presideufc alone, are mainly those of convenience, expediency, necessity ; 
and the strength of the argument, embracing constitutional law, the sound sense of 
the case, and a safe policy, are clearly on the other side of the question. Under every 
Administration, previous to 1829, excejtt that of Mr. Jefferson, it was a dormant 
power ; as no other President, in eight years, exceeded twelve removals, and all were 
for cause which the Senate would i)robably have deemed sufficient, and which were 
therefore silently ratified bj'- the country. Even Mr. Jefferson removed but about 
forty officers in his two terms; and the reason why the people did not manifest a 
greater repugnance to his exercise of this^ower was, that much the hwger number 
of the offices of Government were held by his political opponents. 

In 1829, a wary and keen-sighted l)arty thought it could descry that this power 
was about to be exerted by the existing Administi'ation for the proscription of po- 
litical opinions; and then its constitutional authority was boldly and justly denied. 
This construction was given in a speculative form in 17?i9 ; it was never practically 
asserted until 1801, and only for a brief season and to a very limited extent. So soon 
as it was deliberately examined by the generation of men who succeeded those by 
whom it was originally made, upon the presumption that it was about to become an 
active administrative power, the weight of the highest reason and of the most erudite 
attainments of the whole country decided against it. That decision is still unre- 
A'prsed and in full force; so that this anomalous and uncoustitntional power has not 
the sanction of general acquiescence to sustain it. 

Your committee concede, that where the constitutionality of a power is doubtful, 
and yet it is highly expedient and proper that it should exist, and it has been exerted 



22 EELATIONS BETWEEN SENATE AND EXECUTIVE DEPARTMENTS. 

by successive Congresses, approved and confirmed by tbe other departments of the Gov- 
ernment, andratified and sustained the by people, all this concurring must be considered 
as conclusive of the question. But where a ]jower, like the one now controverted, has 
only been prospectively considered and recognized, and long before any case for its 
exercise had arisen, the weight of authority for and against it being, then, nearly an 
equipoise, the power itself not being necessary for a due administration of the Gov- 
ernment, but tending irresistibly to its corruption, the destruction of its checks and 
balances, and the overthrow of popular liberty, your committee are far from thinking 
that it is entitled to the consideration due such a sanction ; on the contrary, they have 
no hesitation in recommending its unconditional iJnd immediate renunciation. 

They will now proceed to fortify their general position of hostility to this power, 
by the weight of some of the greatest men which our country has ever produced. 
Mr. Benton, in his report before quoted from, says: "It is no longer true that the 
President, in dealing out offices to members of Congress, will be limited, as supposed 
in the Federalist, to the inconsiderable number of places which may become vacant 
by the ordinary casualties of death and resignations; on the contrary, he may now 
draw, for that purpose, upon the whole entire fund of the Executive xoatronage. Con- 
struction and legislation have effected this change. 

" In the first year of the Constitution, a construction was put upon that instrument, 
which enabled the President to create as many vacancies as he xdeased, and at any 
moment he thought proper. This was effected by yielding to him the kittf/h/ jjreroga- 
tive of dismissing officers without the formality of trial. The authors of the Feder- 
alist had not forseen this construction ; so far from it, they had asserted the contrary, 
and, arguing logically from the premises, 'that the dismissing power was appertiuent 
to the appointing power,' they had maintained, in No. 77 of that standard work, that, 
as the consent of the Senate was necessary to the appointment, so the consent of the 
same body would be equally necessary to his dismission from office. But this con- 
struction was overruled by the first Congress which was formed under the Constitu- 
tion; the power of dismission from office was abandoned to the President alone; and, 
with the acquisition of this prerogative alone, the power and patronage of the Presi- 
dential office was instantly increased to an indefinite extent," &c. 

Mr. We.k?'^^^'^ speech in favor of the bill reported by Mr. Calhoun is among the 
most cogent'and powerful emanations of his mighty mind. In a series of unanswer- 
able arguments, he assaults and overthrows this exclusive power of the President to 
dismiss from office, and concludes : " On the whole, sir, with the diffidence which 
becomes one who is reviewing the opiniojis of some of the ablest and wisest men of 
the age, I must still express my own conviction that the decision of Congress, in 1789, 
which separated the power of removal from the power of appointment, was founded 
on an erroneous construction of the Constitution, and that it has led to great incon- 
sistencies as well as to great abuses in the subseqiient, and especially in the more 
. recent, history of the Government. 

" I think, then, sir, that the power of appointment naturally and necessarily in- 
cludes the power of removal, where no limitation is expressed, nor any tenure but 
that at will declared. The power of appointment being conferred on the President 
and Senate, I think the power of removal went along with it, and should have been 
regarded as a part of it, and exercised by the same hands. I think, consequently, 
that the decision of 1789, which implied a power of removal separate from the ap- 
pointing power, was erroneous. 

" But I think the decision of 1789 has been established and recognized by subse- 
quent law as the settled construction of the Constitution, and that it is our duty to 
act upon the case accordingly, for the present, without admitting that Congress may 
not, if necessity shall require it, reverse the decision of 1789. I think the legislature 
possesses the -power oi regulating the condition, duration, qualification, and tenure of office 
in all cases where the Constitution has made no express provision upon the subject." 

Mr. Cla,y also controverts this noxious interpolation of the Constitution with extra- 
ordinary force of argument, and, after hawing made a luminous analysis of the pre- 
cedent by which it was established, he denies that it is conclusive, and adds: "A 
precedent established against the weight of argument, by a House of Representa- 
tives greatly divided, in a Senate equally divided, under the influence of a reveren- 
tial attachment to the Father of his Country, upon the condition that, if the power 
were applied, as we know it has been in hundreds of instances recently applied, 
the President himself would be justly liable to impeachment and removal from 
office; and which, until this administration, has never, since its adoption, been 
thoroughly examined or considered." Mr. Clay gave Mr. Calhoun's bill his hearty 
support, and he prepared an amendment and gave notice of his intention to offer it, 
which provided, in substance, that the President should exercise the power of removal 
only in concurrence with the Senate; when the Senate was not in session he might 
suspend an officer, but was required to communicate the fact, together with the cause, 
to the Senate, at its next session ; and unless that body concurred, the suspended offi- 
cer to be ipso facto reinstated in his place. 



KELATIONS BETWEEN SENATE AND EXECUTIVE DEPARTMENTS. 23 

In the opiniou of the committee, this proposition of Mr. Clay comprehends tbe true 
exposition of the Constitution. The President is exclusively invested with the ap- 
pointiog power, to fill all vacancies happening during the recess of the Senate, the 
duration of the appointment being limited by the termination of its ensuing session. 
If the power of removal is incident to, attendant upon, and correspondent with, the 
power of appointment, it would follow that the President, during the recess of the 
Senate, would be authorized to exercise a correlative power of removal. As his ap- 
pointments, made at such times, would determine and expire at the end of the ensuing 
session of the Senate, so his removals or suspensions from office would be operative 
only for the same period; and, unless the Senate also agreed to the dismissal of the 
officer, he would, by operation of the constitutional principle, be fully reinstated in 
his place. Whilst the Senate was in session the President could not displace any 
XQoro than he could appoint an officer, but would have to state his decision to remove, 
together with the cause, to the Senate ; and unless it advised and consented thereto 
no removal would ensue. 

This construction, it is believed, is in strict conformity both to the letter and the 
spirit of the Constitution, and would bring back the administration of tbe Grovern- 
ment to its true principles. It would tend greatly to reduce the collossal power of 
the President and to restore to the other departments their just constitutional weight 
and independence. It would not impair the necessary energy and efficiency of the 
Executive branch, or obstruct in any considerable degree the proper responsibility 
to which inferior officers ought to be held. For faithlessness, incompetency, or any 
other cause the President could suspend, and the reasonable presumption is that 
whenever it was right that the officer should be permanently displaced the Senate 
would ratify his act. Some inconvenience would no doubt be produced by this prac- 
tice — a bad officer might be occasionally continued in place longer than would be 
compatible with the public interest — the Senate might have more business thrown 
upon it; but with all. its inconvenieucies, even if the sessions of the Senate were 
thereb}'' made perpetual, it would be incomparably preferable to existing things. 
The one would introduce only transient and minor evils, the other is certainly bring- 
ing on the subversion of our whole system of constitutional liberty. 

But there would be other beneficial consequences of the utmost importance. A 
great appreciation in the character of our public officers, particularly in the inferior 
grades, would ensue. From the degradation of physical and moral servituiie, they 
would rise to the dignity of free and independent thought, opinion, and action ; they 
would exchange the trembling uncertainty of a ceaseless dread of the oppression of 
bad men for a reasonable assurance that qualifications, fidelity, and decorum in office 
would enable them to maintain their places. The President and the Senate would be- 
come, what the Constitution intended they should be, mutual checks ; and both would 
then be subject to a proper responsibility at the bar of public opinion, and be required 
to justify every case of removal. This would be a valuable immunity to inferior offi- 
cers. 

When this reform should have had time to operate, and to produce its legitimate 
fruits, there would not be a great many cases in which it would be necessary to ex- 
ercise the power of removal. The subordinate being no longer subject to the tyrant's 
law — the uncontrolled will of one man — he would begin to feel too much security, 
and cherish too much self-respect, to play the parasite and the pander. Rising with 
the consciousness that he now belonged to the country, and not to his official superior, 
patriotism and a sense of duty would take the place of supple hypocrisy and venal 
man worship. Occupying a position to mark official malfeasance, both above and 
below him, each officer would be a sentinel on his associates, because he would know 
that he would be rewarded, and not dismissed and punished, for the revelation of 
their delinquencies. Officers exercising the power of appointing to inferior places, 
not being able to reduce their nominees to the condition of minions, would at length 
begin to feel the promptings of a sense of duty and a regard for their own, fame, and 
look for moral and business qualities. 

The infamous spoils system, with all its abhorrent and demoralizing concomitants, 
would be overthrown. The Presidential election — that moral volcano which breaks 
forth periodically in its terrible eruptions, and in the intervals keeps the whole coun- 
try heaving and tossing in wild commotion — would be tamed of that excited and con- 
vulsive energy which menaces the overthrow of social order, for it is this power of 
removal, enabling the President at will to reclaim and regrant fifty thousand places, 
and thus to sway the hopes and the fears of at least four times that number of men, 
diffused over the whole Confederacy, which has rendered the Presidential election 
not the most sober, well-considered, and well-purposed act which this great people 
perform, but one general and wild conflict of passion, venality, corruption, and 
violence. 

The past assures us of what would be the future state of things, if the principle, 
that an officer is only to be removed for sufficient cause, should be again established. 
Under Washington, Madison, Monroe, andthetwo Adamses it fully obtained, and there 



24 EELATIONS BETWEEN SENATE AND EXECUTIVE DEPARTMENTS. 

was hardly occasion to exert it once the average dnring each year of the administra- 
tion of these Presidents, and yet, in those better days of the Republic, the superior- 
ity of the officers of the Govei-nment over those of this day, in capability, fidelity, 
and virtue is most striking. The people were then neither better, nor wiser, nor 
more patriotic, nor more devoted to business than now ; nor was our general condition 
and circumstances more favorable to the preservation of public and private virtue in 
Government agents. It is the degenerate and demoralizicg "spoils pr nciple" which 
has contributed, more than any other cause, to defile our whole system, and is pre- 
cipilating us so rapidly ujjon premature decay and ruin ; and we must expel it if we 
would save our free and glorious iustitutious. 

The present predicament of the Executive power affords no argument against the 
truth of the positions we have assumed. The President came fortuitously into office, 
without a party, and not himself occupying the position of a party leader. Repudi- 
ating both the "party which had elevated him to the Vice-Presidency, and that which 
had opposed his election, he attempted the irrational and impossible task of building 
up for himself a third oue. This was an impossibility, because the two antagonist 
parties constituted the entire people, their cohesion having been established by years 
of affiliation upon distinct and well-contested systems of measures ; and because 
the President himself is very far from being a man who, under the most favorable cir- 
cumstan( es, could gather together and form a party. The gigantic Executive power 
of the Government is, at this time, as near an abstraction, an ideality, notwith- 
standing the ill-concerted and desperate attempts to make it practically etifective, as 
it is possible to be ; but its very repose and inertion will cause it, when aroused and 
directed by a capable man, to act with renovated vigor. The present conjuncture is 
most propitious for its reduction. The relaxation of party prejudice and intolerance 
in a very sensible degree, a calmer and more impartial view of principles, measures, 
and men, and the total inability of the present incumbent to interpose any obstacle, 
except by the exercise of the veto, all seem to allure Congress now to attempt this 
great reform. 

I Mr. Tyler was a member of the Senate when Mr. Calhoun introduced his measure, 
' and his name is found among the majority of that body which voted for it. His pub- 
lic position has been distinctly that of an advocate of the diminution of Executive 
power. In his address to the people of the United States, on entering upon the dis- 
charge of the duties of the Presidential office, we find the following passage : "In view 
of the fact, well avouched by history, that the tendency of all human institutions is to 
concentrate power in the tandsof a single man, and that their ultimate downfall has 
proceeded from this cause, I deem it of the most essential importance that a complete 
separation should take place befween the sword and the purse. No matter how or 
where the public moneys shall be deposited, so long as the President can exert the 
power of appointing and removing at his pleasure the agents selected for their cus- 
tody, the commander-in-chief of the Army and Navy is, in fact, the treasurer. A per- 
manent and radical change should therefore be decreed. 

"The patronage incident to the Presidential office, already great, is constantly in- 
creasing. Such increase is destined to keep pace with our population, until, without 
a fio-ure^of speech, an army of office holders will overspread the land. The unrestrained 
power exerted by a selfish, ambitious man, in order either to perpetuate his authority 
or to hand it over to some favorite as his successor, may lead to the employment of 
all the means within his control to accomplish his object. The right to remove from 
office, while subject to no just restraint, is inevitably destined to produce a spirit of 
crawliuo- servility with the official corps, which, in order to uphold the hands which 
feed them, would lead to direct and active interference in elections, both State and 
Federal, thereby subjecting the course of State legislation to the dictation of the chief 
executive officer, and making the will of that officer absolute and supreme I will, at 
a proper time, invoke the action of Congress upon this subject, and shall readily ac- 
quiesce in the adoption of all proper measures which are calculated to arrest these 
evils, so full of danger in their tendency. I will remove no incumbent from office who 
has faithfully and honestly acquitted himself of the duties of his. office, except in such 
cases where such officers have been guilty of an active partisanship, or by secret means, 
the less manly, and therefore the more objectionable, has given his official influence 
to the purposes of party, thereby bringing the patronage of the Government into con- 
flict with the freedom of elections." 

In his message to Congress at the commencement of the extra session he again 
takes up the same subject aud treats it thus : " The power of appointing to office is 
one of a character most delicate aud responsible. The appointing power is ever 
more exposed to be led into error. With auxious solicitude to select the most trust- 
worthy for official station, I cannot be supposed to possess a personal knowledge of 
the qualifications of every applicant. I deem it therefore proper, in this most pub- 
lic manner, to invite, on the part of the Senate, a just scrutiny into the character 
and pretensions of every person whom I may bring to their notice in the regular form 
of a nomination for office. Unless persons every way trustworthy are employed in 



EELATIONS BETWEEN SENATE AND EXECUTIVE DEPARTMENTS. 25 

the public service, corruptiou and irregularity will inevitably follow. I shall, with 
the greatest cheerfulness, acquiesce iu the decision of that body, aud, regarding it a,a 
-wisely constituted to aid the executive department in the performance of this deli- 
cate duty, 1 shall look to its 'consent and advice' as given only in furtherance of the 
best interests of the country. I shall also, at the earliest proper occasion, invite the 
attention of Congress to such measures as, in my judgment, will be best calculated 
to regulate and control the Executive power in reference to this vitally interesting 
subject." 

In his message at the beginning of the present session he again presents this sub- 
ject, thus: " I feel it my duty to bring under your consideration a practice which has 
grown up in the administration of tlie Government, aud which I am deeply convinced 
ought to be corrected. lalludetothe exerciseof power which usagerather tlianreason 
has vested in the President, of removing incumbents from office, in order to substitute 
others more in favor with the dominant party. My own conduct in this respect has 
been governed by a conscientious purpose to exercise the removing jiower only in cases 
of unfaithfulness or inability, or in those in which its exercise appeared necessary in 
order to discontinue and suppress that spirit of active i)artisanship, on the part of 
holders of office, which not only withdraws them from the steady and impartial dis- 
chai'ge of their official duties, but exerts an undue and injurious influence over elec- 
tions, and degrades the character of the Government, inasmuch as it exhibits the 
Chief Magistrate as being a party, through his agents, in the secret plots or open 
workings of political parties. 

" In respect to the exercise of this power, nothing should be left to discretion which 
may safely be regulated by law; and it is of high importance to restrain, a.^ far 
as possible, the stimulus of personal interest in public elections. Considering the 
great increase which has been made in public offices in the last quarter of a century, 
and the probability of further increase, we incur the hazard of witnessing violent 
contests, directed too often to the single object of retaining office by those who are 
in or obtaining it by those who are out. Under the influence of these convictions, I 
shall cordially concur iu any constitutional measure for regulating, and, by regulat- 
ing, restraining the power of removal." These are just and sensible views, mixed up 
with a profusion of fine promises, and the country may hope for something from Mr. 
Tyler when he proceeds to redeem these promises. 

In conformity to the opinions herein set forth, your committee ask leave to report 
the subjoined resolutions, and a bill providing for the repeal of the Hmitatibn of four 
years to the appointment of certain officers, by the act of Congress of 1820 ; and that, 
whenever an officer is dismissed, he shall be furnished, by the authority dismissing 
him, with the cause thereof, in writing; and in every case where the dismission may 
be made by any other officer or officers than the President, it shall be his or their duty 
forthwith to report to the President the name of the officer so removed, together with 
the cause of the removal; aud the President to report to both houses of Congress, at 
its next session, all such cases, with the cause of the removal of each officer. 

Besolved, That the Hon. John C. Spencer, Secretary of War, in having removed 
Henry H. Sylvester, late a clerk in thePension Office, is properly chargeable with injus- 
tice and oppression towards the said Henry H. Sylvester, and of culpable abuse of 
his authority as Secretary of War. 

Besolved. That both houses of Congress, and especially the House of Representa- 
tives, as the grand inquest of the nation, have a constitutional right at all times to free 
access to the Executive Departments of the Government for the examination of all 
papers therein, whether regarded by the head of the Department as public or as pri- 
vate and confidential ; and, also, copies of all such papers, from the officer or officers 
having their custody, as either house may require. 

Besolved, That the power of removal from office is not expressly conferred by the 
Constitution, but that it is incidental to and derivable from the power of appoint- 
ment, and is consequently to be exercised by such officers and branches of the Gov- 
ernment as are invested by the Constitution and laws with the power of appointment ; 
that a power of removal belongs neither to the President nor the Senate exclusively, 
but to both conjointly, and as incidental to the separate agency of each in appoint- 
ing to office ; that, as the President is clothed by the Constitution, during the recess of 
the Senate, with the full appoint! n g power to all vacancies occurring duri ng such recess, 
his appointment to continue until the end of the ensuing session of the Senate, so he 
maj'' during such recess exercise the incidental aud correlative power of removal, tohave 
eff'ect for the same time, and at the next ensuing session of the Senate it is his consti- 
tutional duty to lay before that body the names of all officers whom he may have re- 
moved during its preceding vacation, together xvith the cause, specifically, of the removal; 
and if the Senate do, at that session, advise and consent to such removal, the said offi- 
cer is thereupon absolutely and permanently displaced — otherwise he is, by the opera- 
tion of the Constitution, at the end of said session, reinstated in his office, with all hia 
rights and privileges ; and where the President, during the session of the Senate, de- 

S. Eep. 135 3 



26 EELATIONS BETWEEN SENATE AND EXECUTIVE DEPARTMENTS. 

cides to remove au officer, it is his duty, under the Constitution, to communicate the 
name of such officer to the Senate, with the specific cause for his removal ; and un- 
less that body advise and consent to the removal of such officer, no removal whatever 
takes place, and he continues in his office, as though there had been no such proceed- 
ing against him. 



The undersigned, a member of the committee appointed on the case of Henry H. 
Sylvester, concurs in the report of the majority of said committee, so far as it is a 
statement of the facts and circumstances attending the removal of said Sylvester; 
and he also concurs in the first resolution submitted by the majority. But, although 
he finds much to approve in the residue of the report of the majority, and with pleas- 
ure bears his testimony to the great force and ability with which it is drawn, he dis- 
sents from it in the main, and also from the two remaining resolutions and the bill 
recommended by the majority to the House. And particularly does he dissent from 
the third and last«resolution in the report of the majority; regarding it as asserting 
a principle which, if carried out iu practice, would virtually vest the entire power of 
appointment to and removal from office in the Senate, and in fact the whole executive 
power of the Government; a result which, in his belief, the framers of the Constitu- 
tion never contemplated, which^is against the contemporaneous exposition given to 
that instrument, and which would, in effect, constitute the Senate the supervisor and 
dictator of the Executive, and end in that concentration of power in one branch of 
the Government which the faithful and vigilant patriot has ever feared and sought 
to avoid. The undersigned might go into an elaborate argument to sustain his views 
in relation to the subjects submitted by the majority, but he at present contents him- 
self with the simple expression of his opinion, and his dissent from that part of the 
report, and the resolutions and bill, of the majority, to which he has above referred. 

EDMUND BURKE. 

c 



49th Congress, ) SElsTATE. i Eeport 135, 

1st Session. i \ Part 2. 



m THE SEIS^ATE OF THE UlilTTED STATES. 



March 1, 1886.— Ordered to be printed. 



Mr. PuGH, from the Committee on the Judiciary, submitted the follow- 
ing 

VIEWS OF THE MIJS^OEITY 

ON THE 

LETTICU OF THE ATTORNEY-GENERAL OF THE UNITED STATES DECLIN- 
ING TO TRANSMIT TO THE SENATE COPIES OF OFFICIAL RECORDS 
AND PAPERS CONCERNING THE ADMINISTRATION OF THE OFFICE 
OF THE DISTRICT ATTORNEY OF THE SOUTHERN DISTRICT OF ALA- 
BAMA. 

The minority of the Committee on the Judiciary.^ to ivhom was referred' a 
letter from- the Attorney- General of the United States declininfj to trans- 
mit to the Senate copies of official records and papers concerning the ad- 
ministration of the office of the district attorney of the southern distrust 
of Alabama from January 1, 1885, to January 25^ 1886, respectfully sub- 
mit the following report: 

When President Cleveland came into office he found at least 95 per 
cent, of tbe civil offices of the United States filled by Kepublicans,' 
who had enjoyed their honors and emoluments through a period of 
twenty years, and as a rule these public positions had been distributed 
as rewards for partisan service, which the recipients continued to render 
after their appointment. 

The President was elected on the declaration that civil office was a 
public trust, to be so treated by incumbents in practice, as well as in 
theory, and also upon the conviction of a majority of the people that it 
was a standing- menace to the honesty, purity, and safety of the Gov- 
ernment to perpetuate in these offices partisan officials who had procured 
their positions by partisan service, and emploj'ed their emoluments, 
power, and influence for personal gain, and as aids in securing party 
supremacy'. 

The party to whom the President owes his nomination and election 
had been exiled from all participation in the civil administration of the 
Government for nearly a quarter of a century, and it seemed reason- 
able and just that the five millions of voters who had been thus politi- 
cally ostracized should be allowed at least a fair share of the offices 
which had been created for the benefit of the whole people, without re- 
gard to party divisions. The friends and supporters of the President 
made application to him for a redistribution of the public trusts under 
the Government, so that they might receive, not as the spoils of victory, 
but as public honors and emoluments, at least a fair share of what was 
then monopolized by his political opponents, who were and had been 



2 EELATIONS BETWEEN SENATE AND EXECUTIVE DEPAETMENTS. 

unfrieDdly to Democratic principles and could not be trusted as agents 
to promote the usefulness and success of Democratic administration. 

No other President has ever been subjected to such severe trial or 
had to meet so many grave difficulties since he entered upon the dis- 
charge of the duties of his high office. 'No other President has ever had, 
in quantity or quality, such an abundant supi^ly of valid reasons and 
causes urging him to a free exercise of his power of removal from Federal 
office; and no other President ever resisted with more firmness the just 
claims of his supporters, or used his power of removal more conscien- 
tiously, cautiously, and sparingly. Nearly twelve months have elapsed 
since the President's inauguration, and six hundred and fifty will more 
than cover the whole number of removals or suspensions. Had the 
number reached as many thousands as hundreds he would not by this 
time have made an equal division between the two national parties of 
the offices not embraced in the civil-service law. 

Notwithstanding these undeniable facts and circumstances, the six 
hundred and fifty nominations sent to the Senate in the suspension 
cases made during the recess of the Senate have, been allowed to re- 
main before the committees without consideration and final disposition. 
In the able and ingenious report of the majority of the committee the 
Senate and the country are informed for the first time of the grounds 
and reasons for such long delay and non-action. The basis and justifi- 
cation for this remarkable procedure by which suspension cases are to 
be postponed an indefinite period, and important legislative business 
interrupted, and no purpose served but to agitate and distract the 
public mind, is the suspension of Duskin from the powers and duties 
of the office of district attorney of the southern district of Alabama, 
whose term of office has long since expired, and the nomination of Bur- 
nett to take the place. Duskin has made no complaint to the Judiciary 
Committee, the Senate, the President, or the Attorney-General that he 
was wronged by the suspension. The Judiciary Committee is in posses- 
sion of full information showing that Burnett was recommended to the 
President by all the members of Congress from Alabama, on personal 
knowledge of his high character and qualifications for the office, and 
that since he has been in the discharge of its duties he has the unquali- 
fied indorsement of the judge and clerk of the district court of the 
United States, both Republicans. 

The resolution of the Senate directs the Attorney-General " to trans- 
mit to the Senate copies of all documents and papers that have been 
filed in the Department of Justice since the 1st day of January, 1885, 
in relation to the management and conduct of the office of the district 
attorney of the United States for the southern district of Alabama." 
The answer of the Attorney General is : 

"That the papers and documents which are mentioned in said resolu- 
tion and still remaining in the custody of the Department have exclusive 
reference to the suspension by the President of George M, Duskin, the 
late incumbent of the office of district attorney for the southern dis- 
trict of Alabama, and it is not considered that the jiublic interest will 
be promoted by a compliance with said resolution and the transmission 
of the papers and documents therein mentioned to the Senate in exec- 
utive session." 

Stript to the naked truth, without any specialpleading, the case made 
for the decision of the Senate on their resolution, and the answer of the 
Attorney-General is, whether the Senate has the right to demand of the 
Attorney-General the transmission, against the order of the President, 
of the only paper or document of the description mentioned in the res- 



KELATIONS BETWEEN SENATE AND EXECUTIVE DEPARTMENT*S. 3 

oliition, when that paper or docnmeut is stated in the refusal to relate 
exclusively to the removal of Duskiu by the President, and for that 
reason alone not transmitted. The pai)er shows on its face to what it 
relates, and it requires the exercise of no judgment to determine its 
character. The President holds that it is not a publi<! document, and 
there can be no doubt about the correctness of his decision, which must 
be accepted as conclusive. 

It is an undeniable truth, without qualification or exception in any 
case, that every right, power, privilege, or prerogative created by any 
law, or granted in the Constitution to Congress, or any Department 
or officer of the Government, has some just reason, use, necessity, or 
foundation for its existence and support. The majority of the Judiciary 
Committee in their report affirm the right of the Senate in executive 
session, or in open session, to direct the Attorney-General or any head 
of a Department, or to request the President to transmit to tlie Senate, 
in open or executive session, any paper on the files of the Department 
or in the possession of the President, if such paper relates to an '■'•official 
acf'' of the President or the head of any Department^ although such "offi- 
cial act"' is the removal or suspension by the President of a civil officer 
of the United States. 

The minority deny that the claim of the majority of the committee in 
the case now before the Senate, or in any case where the paper or doc- 
UDient relates excbKsively or materially to removals or suspensions by 
the President, has any foundation or recognition to support it in the 
Constitution, or any valid law, custom, or precedent. The burden rests 
upon the majority of the committee of showing that the right or power 
exists in the Senate, under the Constitution, or some law, custom, or 
precedent, and the reason, use, or necessity for it, to direct the head of 
any Department, or to request the President to send to the Senate, in 
open or executive session, any paper, or document, in the President's 
possession, or on the files of any of the Departments, not public, but 
relating exclusively, or materially, to his official act of removal or sus- 
pension of a civil officer of the United States. 

It is difficult for the minority to decide what unmistakable rights 
powers, or prerogatives are claimed for the Senate in tlie report of the 
majority that are controverted in this proceeding, or that have ^luy bear- 
ing, application, or significance whatsoever to the real issue joined be- 
tween the Senate and the President. The committee seems to think 
that it strengthens their claim to the papers and documents in question 
that the order to transmit them is made by the Senate upon the head 
of a department. It is broadly asserted in the miijority report that " it 
is within the constitutional competency of either House of Congress to 
have access to the official papers and documents in the various public 
offict'S." If it is not intended by the majority that this "constitutional 
competency of either House of Congress to have access to official papers 
and documents in the various public offices " should embrace papers 
and documents relating exclusively to removals and suspensions by the 
President, why make the claim of right in the two Houses so sweeping 
and comprehensive"? 

It is admitted in the majority report that no statute confers the right 
on either House to direct the Attorney -General to send to either House 
any official papers and documents, but the committee claims that the 
right exists "as a necessary incident from the very nature of the pow- 
ers intrusted by the Constitution to the two Houses of Congress"; 
"that either House must have at all times the right to know all that of- 
ficially exists or takes place in any of the Departments of the Govern- 



4 RELATIONS BETWEEN SENATE AND EXECUTIVE DEPAETMENTS. 

inent." Oau any grant of power in the Constitution to either House of 
Congress be found "that in its very nature requires that either House 
8bould have at all times the right to know anything, wherever or in 
whatever form it may exist, about removals or suspensions of Federal 
officers by the President ?" 

The minority admit, once for all, that any and every public document, 
paper, or record on the files of any Department, or in the possession of 
the President, relating to any subject whatever, over which either house 
of Congress has any grant of power, jurisdiction, or control under the 
Constitution, is subject to the call or inspection of either house for use 
in the exercise of its constitutional powers and jurisdiction. It is on 
this clearly-defined and well-founded constitutional principle that, 
wherever any power is lodged by the Constitution, all incidents follow 
such power that are necessary and proper to enable the custodian of it 
to carry it into execution. Whether the power is granted to Congress, 
or either house, or to the President, or any Department or officer of 
the Government, or to the President by and with the advice and con- 
sent of the Senate, the principle is as fundamental as the Constitution 
itself that all the necessary incidents of such grants accom})any the 
grants and belong to and can be exercised by the custodians of such 
powers, jointly or severally, as they may be vested by the Constitution. 

It is on the application and enforcement of this unquestioned rule of 
construction that either house of Congress has the right inherent in 
the power itself to direct the head of any Department, or request the 
President to transmit any information in the knowledge of either, or 
any public or official papers or documents, or their contents, on the files 
or in the keeping of either, provided such papers or documents relate 
to subjects, matters, or things in the consideration of which the house 
making the call can use such inform ation, papers, or documents in the 
exercise of any right, power, jurisdiction, or privilege granted to Con- 
gress, or either house, or to the President by and with the advice and 
consent of the Senate. 

But if all the power granted in the Constitution over the subject- 
matter or thing to which papers or documents relate, wherever they may 
be found, is vested by the Constitution in the President exclusively, the 
only rightful custodian of all such paj^ers or documents, or the infor- 
mation they contain, is the chief executive officer, to whom the Con- 
stitution has intrusted all the power its framers were willing to grant 
over that subject. It would be a reflection upon the common sense of 
the framers of the Constitution to decide that they had vested in the 
President and the Senate all the power to make and ratify treaties, and 
while withholding from the House of Representatives all such power, 
they had granted, by implication, to the House of Representatives the 
right to have access to all the papers and documents upon which the 
President and Senate had acted in making and ratifying treaties. 

Why was the possession or inspection of such papers and documents 
by the House of Representatives refused by President Washington ? 
For the plain reason that the House of Representatives had no power 
over treaty-making. It would be equally unreasonable to conclude 
that the framers of the Constitution had declined to divide the power 
of removing Federal officers between the President and Senate, and 
after vesting all such greater power of removal (if it has been done) in 
the President alone, they should at the same time give to the Senate, 
by implication, or as a necessary incident of another power, the less 
right of advising and consenting to removals. That would amount to 
vesting the jmncipal power of removal in the President, and imposing 



EELATIONS BETWEEN SENATE AND EXECUTIVE DEPATiTMENTS. 5 

a limitation iipou it, to be found as a mere incident of another and dif- 
ferent power of advisin.!"- and consenting- to appointments. 

The view enforced by the minority in this report of the vital and par- 
amount question i)resehted from the committee to the Senate, makes it 
unnecessary^ to notice the attempt of the majority to make something 
out of the fact that the resolution of the Senate is directed to the At- 
torney-General, and that as he is an officer created by a law of Con- 
gress either house has just as much xaower over him as the President, 
except to say that if such reasoning- is sound it would compel the Sec- 
retary of State to transmit to the House of Kepresentatives on its order 
all papers and documents relating to the making and ratifying of 
treaties on file in the State Department, which is also the creation of a 
law of Congress. Besides, the effort to place the duty of transmitting 
the papers called for to the Senate upon the head of a Department, as 
separate and distinct from the President, or to say this is not the act of 
the President, is not permissible. 

The President speaks or acts through the heads of the several De- 
partments in relation to subjects which appertain to their respective 
duties. This principle is recognized by the Supreme Court in Wilcox y. 
Jackson, 13 Peters, 513, and many subsequent decisions. 

Without circumlocution, or evasion, or generalizing, or dealing in sub- 
tilities, or refining on irrelevant and misleading cases cited in the ma- 
jority report, the minority of your committee, after making as <liligeut 
a search as time and ox3portunity allowed, feel satisfied that from 178^ 
to 1807, a period of seventy eight years, not a single case can be found, 
and not a single case occurred in which tiie Senate in executive session,, 
by resolution or otherwise, directed the head of any Department, or re- 
quested the President to transmit to the Senate in executive session 
papers or documents on file, or in the custody of the head of the Depart- 
ment, or the President, relating exclusively or materially to removals 
of Federal officers by the President during the recess or the sessions of 
the Senate, and such resolution was obeyetl by any head of a Depart- 
ment or the President. 

To meet the case squarely, the minority feel the utmost confidence in 
stating that, dnring a period of seventy-eight years, from 1789 to 18i>7, 
no such resolution as that now before the Senate was ever obeyed by 
the President or any head of a Department. The majority of the com- 
mittee says : 

The instances of requests to' the President and commands to the heads of Depart- 
ments by each house of Congress from those days until now for papers and informa- 
tion on every conceivable subject of public airairs are almost innumerable; for it 
aippears to have been thought by all the Presidents who have carried on the Govern- 
ment now for almost a century, that even in respect of requests to them, an inde- 
pendent co-ordinate branch of ttie Government, they were under a constitutional 
duty and obligation to furnish to either house the papers called for, unless, as h as- 
happened in very rare instances, when the request was coui)led with an appeal to- 
the discretion of the President in respect to the danger of publicity to send the papers^ 
if, in his judgment, it should not be iiiuompatible with thj public welfare. 

Is this broad statement made as an authority for the call on the At- 
torney-General to send to the Senate in executiv^e session the papers ia 
his Department relating exclusively to the suspension of Duskin by the 
President"? If not, what purpose is intended to be served by the state- 
ment? If intended to sustain the present call on the Attorney Genera-l,' 
would it not be a remarkable coincidence that Washington, who signed 
the act of Congress declaratory of the exclusive right of the President 
to make removals, and Madison, whose matchless i)Owers were devoted to 
the p-assage of that act, intended as he declared in the debate as a '• per- 



6 RELATIONS BETWEEN SENATE AND EXECUTIVE DEPARTMENTS. 

manent settlement of the constitutional power of tlie President to make 
removals within his discretion without accountability to the Senate," to 
obey requests, or for his cabinet officers to obey demands for the trans- 
mission of papers tothe Senate in Executive session, or to either house 
in open session, reating exchisiv^ely to an "official act" of removal, over 
which he believed he had been instrusted with the sole power by the 
Constitution ? And would it not be equally inexplicable that such a re- 
quest or demand would have been obeyed by John Quincy Adams, or 
by Andrew Jackson, "in times of the hiohest party excitement and 
stress," in 1826 and 1835? If Adams and Jackson were willing- to obey 
such requests and demands or ever did so, why did Mr. Benton in 1826' 
and Mr. Calhoun in 1835 report bills to the Senate requiring tlie Presi- 
dent to transmit to the Senate the cause of removals and the papers 
relating- thereto, which bills fell still-born, on the table of the Senate. 

It is not true that a single precedent can be found for a continuous pe- 
riod of seventy eight years that gives any support whatever to the pres- 
ent demand of the Senate u])ou the Attorney-General to transmit pa- 
pers relating exclusively to the removal of Duskin. Every precedent 
cited in the rei)ort of the majority has for its foundation the constitutional 
l^ower of the Senate to particii)ate with the President in the official act 
to Avliich the j)apers called for related. The Senate shares with the 
President the treaty making power, and he can make no appointment 
to ofiice without the advice and consent of the Senate. Upon the sub- 
jects of treaty-making and appointments, papers relating thereto, when 
requested or demanded, have been sent to the Senate, for tlie jtlain rea- 
son that the President and Senate are jointly intrusted witli [)owers in 
relation to treaties and appointments which the Senate cannot safely 
and wisely exercise without the inspection of papers ana documents 
relaiing thereto in the Departments or in the keej^ingof the President. 
No su(;h foundation, reason, or necessity exists in the matter of remov- 
als from ofhce. 

The demand in the ]>resent case upon the Attorney-General, and its 
persistent pressure by the majority of the committee, afier he has de- 
clined, on the order of the President, to obey it, for the sole reason that 
the only papers in his Department, filed there since January 1, 1885, 
relate exclusively to the removal of Duskin by the President, necessarily 
implies that in the judgnjent of a majority of the committee the Senate 
has the same constitutional power over removals that it has over ap- 
pointments — that is, the power of advising and consenting thereto. 
There is no escape from this crucial test of who is in the right in this 
controversy, the Senate or the President. 

The question is the same as that presented in the First Congress in 
1789; revived in the Senate in 1826; pressed again in the Senate in 
1835; revived again in 1867, when the President was hampered by un- 
constitutional legislation forced through Congress by a revolutionary 
majority under the pressure of overruling ])arty necessity; soon re- 
vived again by Pr* sident Grant in 1869, and ending in reacti<n)ary 
legislation, restoring the power and calling it "suspension" from ofhce, 
to the '^ discretions^ of the President, and thereby conferring upon him 
the power, if he wills to exercise it, of ex[)elling permanently from 
office any incumbent, with or without cause, and in defiance of any 
power in the Senate to prevent the President from making the suspen- 
sion periDctual. The same old struggle again comes up in this Senate 
without provocation, or any meritorious excuse or justification. In 
self-defense the President and the friends of his constitutional prerog- 
ative in the Senate are again forced to meet and answer the question, 



RELATIONS BETWEEN SENATE AND EXECUTIVE DEPARTMENTS. 7 

Where does tlie power of making reinovals from Federal office reside ? 
Does tlie Constitution answer this question ? All it says is : 

(1) The executive power shall be vested in a President of the United States of 
America. 

(2) He shall have p(nv<M-, by and with the advice and consent of the Senate, to 
make treaties, provided i wo-Hiirds of the Senators present concur; and he shall nomi- 
nate and, hy and with (he advice and consent of tlie Senate, shall appoint ambassa- 
dors, other public niiuisrers and consuls, judges of the Suiirerne Court, and all other 
ofificers of tlie United Sta.tes wliose a[)poinriuonts are not hereiu otherwise provided 
for, and wliich shall lie established by law; but the Congress may by law vest the 
appointment of such inferior officers as they thiuk pmper in the President alone, in 
the cuurls of law, or in tiie hea,ds of Departments. 

(o) The Pri'sident shall haA'e power to lill up all vacancies that may happen during 
the rect^ss of the Senate by yrautiug' couiiuissious which shall expire at the end of 
their next session. 

(4) He shall take care that the laws be faithfully executed, and shall commission 
all the officers of the United States. 

The question of the meaning of the above quotations from the Consti- 
tution, and what disposition, if any, they make of the power of removing 
officers of the United States, came up for consideration and settlement 
by the First Congress in May, 1789. There were many framers of the 
Constitution in that Congress, and none of them had more to do in that 
great work or were more familiar with its meaning than Mr. Madison. 
This debate, considered the most remarkable in the history of Congress, 
is ])ubiished in "Annals of Congress," 1789, vol. 1, from pages 372 to 
585 

The minority of your committee is satisfied that they are unable to 
produce anything themselves, or from others, that can add to what was 
said in that famous debate on the question reported to the Senate. The 
decision was made by statesmen fresh from, the work of framing the 
Constitution, and at a time when no x>olilical parties had been organized 
to influence judgment and control opinion. No settlement of any con- 
troverted question ever had higher sanctions or more to commend it to 
unquestioned acquiescence. 

Said Mr. Madison : 

However various the opinions which exist u]iou the point now before us, it seems 
agreed on all sid.'s that it demands a careful investigatiou and full discussion. I feel 
tlie importance of the question, and know that our decision will involve the decision 
of all similar cases. The decision that is at this time made will become the perma- 
nent exposition of the t/onstitutiou ; and on a permanent exposition of tlie Constitu- 
tion will depend the genius and character of the whole Government. 

The following are extracts from some of the speeches made on that 
memorable occasion : 
Mr. Madison said : 

I think it absolutely necessary that the President should have the power of re- 
moving from oHice ; it will make hiai, in a peculiar manner, resiionsible for their con- 
duct and subject him to imp(-aclimeut himself, if he suffers them to perpetrate with 
impunity high crimes or misdemeauovs against the United States or neglects to super- 
intend their conduct so as to check their excesses. On the constitutionality of the 
declaration I have no manner of doubt. 

It is said that it comports with the nature of things that those who appoint should 
have the ]»ower of removal ; but I cauuot conceive that this sentiment is warranted 
by the Constitution. I believe it would be found very iaconvenient in laractice. It 
is one of the most pi'omiuent features of the Constitutini — a principle that pervades 
the whole system — that there should be the highest possible degree of responsibility 
in all the executive officers thereof. Anything, therefore, which tends to lessen this 
responsibility is conti'ary to its sjiirit and intention, and, unless it is saddled upon us 
expressly by the letter of that work, I shall oppose the admission of it into auy act 
of tlie legislature. 

Now, if the heads of the Executive Departments are subjected to removal by the 

President, we have in him security for the good behavior of the officer. If he does 

• not conform to the judgment of the President in doing the executive duties of his 



8 ELATIONS BETWEEN SENATE AND EXECUTIVE DEPARTMENTS. 

office, he cau be displaced. This makes him responsible to the great Executive power' 
and makes the President responsible to tlie public for the couduct of the person he 
has Douiinated and appointed to aid him in the aduunistration of his Department. 
But if the President shall join in a collusion with this officer, and continue a bad man 
in office, the case of impeachment will reach the culprit and drag him forth to punish- 
ment. 

But if you take the other construction, and say he shall not be displaced but by 
and with the advice and cousent of the Senate, the President is no longer answerable 
for the conduc+^ of the officer ; all will depend upon the Senate. You here destroy 
a real responsibility without obtaining even the shadow ; for no gentleman will pre- 
tend to say the responsibility of the Senate can be of such a nature as to afford sub- 
stantial security. But why, it may be asked, was the Senate joined with the Presi- 
dent in appointing to office, if they have no resi)onsibility ? I answer, merely for the 
sake of advising, being supposed, from their nature, better acquainted with the char- 
acter of the candidates than an individual ; yet even here the President is held to 
the responsibility — he nominates, and, with their consent, appoints. No person can 
be forced upon him as an assistant by any other branch of the Government. 

There is another objection to this construction, which I consider of some weight, and 
shall therefore mention to the committee. Perhaps there was no argument urged with 
more success, or more plausibly grounded against the Constitution, under which we 
are now deliberating, tlian thiiu that founded on the mingling of the executive and 
legislative branches of the Government in one body. It has been objected that the 
Senate have too much of the executive power even by having a control over the Presi- 
dent in the appointment to office. 

Now, shall we extend this connection between the legislative and executive De- 
partments, which will strengthen the objection, and diminish the responsibility we 
have in the head of the Executive ? 

Mr. Sedgwick (vol. 1, First Congress, p. 460) : 

But they say the Senate is to be united with the President in the exercise of this 
power. I hope, sir, this is not the case, because it would involve us in the most seri- 
ous difficulty. Suppose a discovery of any of those events which I have just enumer- 
ated we~e to take place when the Senate is not in session, how is the remedy to be 
applied ? This is a serious consideration, and the evil could be avoided no other way 
than by the Senate's sitti g always. Surely no gentleman of this House contemplates 
the necessity of incurring such aa expense. I am sure it will be very objectionable to 
our constituents; and yet this mi:st be done, or the public interest be endangered by 
keeping an unworthy officer in place until that body shall be assembled from the ex- 
tremes of the ITnion. 

It has been said that there is danger of this power being abused, if exercised by one 
man. Certainly the danger is as great wirh respect to the Senate, who are assembled 
from various parts of the continent, with different impressions and. opinions. It ap- 
pears tome that such a body is more likely to misuse this power than the man whom 
the united voice of America calls to the Presidential chair. As the nature of the 
Government requires the power of removal, I think it is to be exercised in this way 
by a hand capable of exerting itself with effect, and the power must be conferred 
upon the President by the Constitution, as the executive officer of the Government. 

Mr. Madison said (page 463) : 

The Constitution affirms that the executive power shall be vested in the President. 
Are there exceptions to this projiosition ? Yes; there are. The Constitution says 
that in appointing to office the Senate shall be associated with the President, unless 
in the case of inferior officers, when the law shall otherwise direct. Have we a right 
to extend this exception ? I believe not. If the Constitution has invested all exec- 
utive power in the President, I venture to assert that the legislature has no right to 
diminish or modify his executive authority. The question now resolves itself into 
this: Js the power of displacing an executive power? I conceive that if any power 
whatsoever is in its nature executive, it is the power of appointing, overseeing, and 
controlling those who execute the laws. 

If the Constitution had not qualified the power of the President in appointing to 
office, by associating the, Senate with him in that business, would it not be clear that 
he would have the right, by virtue of his executive power, to make such appoint- 
ment ? Should we be authorized, in defiance of that clause in the Constitution, 
"The executive power shall be vested in a President," to unite the Senate with the 
President in the appointment to office ? I conceive not. If it is admitted that we 
should not be authorized to do this, I think it may be disputed whether we have a 
right to associate them in removing persons froiii office, the one power being as much 
of an executive nature as the other; and the first only is authorized, by being ex- 
cepted out of the general rule established by the Constitution in these words, " The 
executive power shall be vested in the President." 



RELATIONS BETWEEN SENATE AND EXECUTIVE DEPARTMENTS. 9 

The judicial power is vested in a Supreme Court; but will gentlemen say the judi- 
cial power can be placed elsewhere unless the Constitutioif has made an exception? 
The Constitution justifies the Senate in exercising- a judiciary power in determining 
on impeachments; but can the judicial power be further blended with the powers of 
that body? They cannot. I therefore say it is incontrovertible, if neither the legis- 
lative nor judicial powers are subjected to qualifications otber than those demanded 
in the Constitution, that the executive powers are equally unabatable as either of 
the others; and inasmuch as the power of removal is of an executive nature, and not 
affected by any Constitutional exception, it is bejond the reach of the legislative 
body. 

Mr. Clymer said (p. 489): 

If I were to give my vote merely on constitutional ground, I should be totally in- 
different whether the words were struck out or not; because I am clear that the Ex- 
ecutive has the power of removal as incident to his department; and, if the Consti- 
tution had been silent with respect to the appointment, he would have had that power 
also. The reason, perhaps, whj^ it was mentioned in the Constitution, was to give 
some further security against the introduction of iinproper men into office. But in 
cases of removal there is not such necessity for this check. What great danger 
would arise from the removal of a worthy man, when th*' Senate must be consulted 
iu the appointment of his successor ? Is it likely they will consent to advance an im- 
proy)er character ? The y)resumption therefore is, that he would not abuse this power ; 
or, if he did, only one good man would be changed for another. 

If the President is divested of his power, his responsibility is destroyed; you pre- 
vent his efficiency, and disable him from affording security to the people which the 
Constitution contemplates. What use will it be of to call the citizens of the Union 
together every four years to obtain a purified choice of a representative, if he is to 
be a mere cipher in the Government ? The Executive must act by others ; but you 
reduce him to a mere shadow, when you control both the power of appointment and 
removal ; if you take away the latter power, he ought to resign the power of super- 
intending and directing the executive parts of Government into the hands of the 
Senate at once, and then we become a dangerons aristocracy, or shall be more desti- 
tute of energy than any Government on earth. These being my sentiments, I wish 
the clause to stand as a legislative declgxation, that the power of removal is consti- 
tutionally vested in the President. 

Mr. Madison said (p. 495): 

However various the opinions which exist upon the point now before us, it seems 
agreed on all sides that it demands a careful investigation and full discussion. I feel 
the importance of the question, and know that our decision will involve the decision 
of all similar cases. The decision that is at this time made will become the perma- 
nent exposition of the Constitution, and on a permanent exposition of the Constitution 
will depend the genius and character of the whole Government. It will depend, per- 
haps, on this decision whether the Government shall retain that equilibrium which 
the Constitution intended, or take a direction towards aristocracy or anarchy among 
the members of the Government. Hence, how careful ought we be to give a true di- 
rection to a power so critically circumstanced. 

It is incumbent on us to weigh with particular attention the arguments which have 
been advanced in support of the various opinions with cautions delibeiation. I own 
to you, Mr. Chairman, that I feel great anxiety upon this question. I feel an anxiety 
because I am called upon to give a decision in a case that may affect the fundamental 
principles of the Government under which we act, and liberty itself But all that I 
can do on such an occasion is to weigh well everything advanced on both sides with 
the purest desire to find out the true meaning of the Constitution, and to be guided 
by that and an attachment to the true spirit of liberty, whose influence I believe 
strongly predominates here. 

Several constructions have been put upon the Constitution relative to the point m 
question. The. gentleman from Connect icut (Mr. Sherman) has advanced a doctrine 
which was not touched upon before. He seems to think (if I understood him rightly) 
that the power of displacing from office is subject to legislative discretion ; because 
it, having a right to create, it may limit or modify as it thinks proper. I shall not say 
but at first view this doctrine may seem to have some plausibility ; but when I con- 
sider that the Constitution clearly intended to maintain a marked distinction between 
the legislative, executive, and judicial powers of Goveiument; and when I consider 
that if the legislature has a power such as is contended for, they may sitbject and 
transfer at discrttion powers from one Department of our Government to another, 
they may, on that principle, exclude the President altogether from exercising any 
authority in the removal of oflBcers; they may give it to the Senate alone, or the 
President and Senate combined ; they may vest it in the whole Congress, or they may 



10 EELATIONS BETWEEN SENATE AND EXECUTIVE DEPAETMENTS. 

reserve it to be exercised by this House. When I consider tlie consequences of tMs 
doctrine, and compare them with the trne principles of the Constitution, 1 own that 
I cannot sn!>scribe to it. 

The doctrine, however, which seems to stand most in opposition to the principles I 
contend for, is, that the power to name an a])pointment is, in the nature of thiuos, in- 
cidental to tiie power which mahes the apixiintment. I agree that if nothing more 
was said in the Conslitntion than that the President, by and with the advice and 
consent of the Striate, should appoint to office, there would be a great force in saying 
that the power of removal resulted by a. natnval implication from the power of ap- 
pointing. But there is anotlier part of the Constitution no less explicit than the one 
on which the gentleman's doctrine is founded. It is that part wliich dechires that 
the i-xecutive power shall be vested in a President of the United States. The asso- 
ciation of theSenaie wi!h the President in exercising that particular function is an 
excejitiou to this general rule; and exceptions to general rules, I conceive, are ever 
to be taken strictly. 

But there is another part of the Constitution which inclines, in my judgment, to 
favor the construction I pat upon it; the President is rec^uired to ta.ke care tliat the 
laws be faithfully execnted. Iftlieduty to see the laws faithfully exeiaited be re- 
quired at the hands of the Executive Magistrate, it would seem that it was generally 
intended he sliould have that species of power which is necessary to acco!ii])lish that 
end. Now, if the ofScer when once appointed is not to depend upon the President 
for his official existence, but upon a distinct body (for where there ar'e two negatives 
required, eitlier ca" i^revent the removal), I confess I do not see how the President can 
take care that the laws be faithfully executed. It is true, by a circuitous operation 
he may obtain in impeachment, and even without this it is^ijossible lie may obtain 
the concnrience of the Senate for tlie purpose of displacing an ofScer ; but would this 
giA'e that species of control to the Executive Magistrate which seems to be required 
by the Constitution? 

I own, if my opinion was not contrary to that entertained by what I suppose to be 
the miuoiity on this question, I should be doubtful of being miKtaken \i/heu I dis- 
covered how inconsistent that construction would make the Constitution with itself. 
I can hardly bring myself to imagine the wisdom of the convention who framed the 
Constitution conten^.plated such iucongrnity. 

There is another maxim which oughr, to direct us in ex])ounding the Constitution, 
and is of great importance. It is laid down in must of the constitutions or bills of 
rights in the republics of America; it is to he found in the political writings of the 
most <;elel)rated civilians, and is every where hel I. as essential to tJie presentation of 
liberty, that the three great departments of Government be kept sej)arate ami dis- 
tinc ; and if in any case they are blended, it is in order to admit a partial qualifica- 
tion, in order more effectually to guard against an entire consolidation. 

I think, therefore, when we review the several parts of this Constitution where it 
says tliat'the legislative ])ow. rs shall be vested in a Congress of the United States, 
under certain exceptions, and the executive powers vested in the President with cer- 
tain exceptions, we must suppose they were intended to be kept S'^parate in all cases 
in which they are not blended, and ought, consequently, to exi^ound the Constitution 
so as to blend them as little as possible. Everything I'elative to the merits of the 
question, as distinguished from a constitutional question, seems to turn on the danger 
of such a power vested in the President alone ; but when I consider the checks under 
which he lies in the exercise of this power, I own to you I feel no apprehension but 
what arise froai the dangers incidental to the power itself, for dangers will be inci- 
dental to it vest it where you please. 

I will not reiterate what was said before with respect to the mode of election, and 
the extreme improbability that any citizen will be selected from the mass of citizens 
who is not highly distinguished by his abilities and worth ; in this alone we have no 
small security for the faithful exercise of this power. But, throwing that out of the 
question, let us consider the restraints he will feel after he is placed in that elevated 
station. It is to be remarked that the power in this case will not consist so mucli in 
continuing a bad man in office as in the danger of displacing a good one. Perhaps 
the great danger, as has been observed, of abuse in the executive power lies in the 
improper continuance of bad men in oflSce. But the power we contend for will not 
enable him to do this; for if an unworthy man be continued in office by an unworthy 
President, the House of Eepresentatives can at any time impeach him, and the Sen- 
ate can remove him, whether the President chooses or not. 

The danger then consists merely in this: The President can displace from ofSce a 
man whose merits require. that hC'Shonld be continued in it. What will be the mo- 
tives which the President can feel for such abuse of his power, and the restraints that 
operate to x^revent it? In the first place, he will be impeachable by this House be- 
fore the Senate for such an act of maladministration ; for I contend that the wanton 
removal of*meritorions officers would subject him to impeachmentand removalfrom his 
own high trust. But what can be his motives for displacing a worthy man? It must 



RELATIONS BETWEEN SENATE AND EXECUTIVE DEPARTMENTS 11 

be tlirst lie may iill tlie place with an unworthy creature of liis own. Can lie accom- 
plish this end ? No; he can place no man in the vacancy whom the Senate shall not 
approve; and, if he couUl fill the vacancy with the man he might choose, I am sure 
lie would have little inducement to make an improper removal. Let us consider the 
consequences. The injured man will he supported by the popular opinion; the com- 
munity will take sides with him agiiinst the President: it will facilitate those com- 
hinntions and give success to those exei'tions which will be pursued to prevent his re- 
■election. 

To disphicc a man of high merit, and who from his station may be supposed a man 
of extensivji inlluence, are 'considerations in the mind of anj' mau who may till the 
Presidential chair. The friends of those individuals and the public sympathy will be 
against him. If this should not pioduce his impeachment lielore the Senate, it will 
amount to nu impeachment Ix'fove th^, communiry, wlio will liavi^ the power of pun- 
ishment, byn-i'nsiug tore-elert him. But snpudse thisi'.crscciUiMl indi vidualc,;nnotob- 
taiu revenge in this umde, there are other modes in which be- could make the situation of 
the President very inconvenient, if you suppose him resolutely bent on executing the 
dictates of resentment. If he had not iniiiieuoe enough to direct the vengeance of the 
whole community, he may probably be aide to obtain an appointment in one or the 
other branch of the legislature, and, being a mau of weight, talents, aud intlueuce, 
In either case he may ]novc to the President troublesome indeed. 

We h;}vc seen cxanipli's in the history of other nations which justifies the remark I now 
have made. Thoughthe prerogatives of the British King areii'reat as his rauk, and it is 
unquestionably known that he has a positive inlluence o\'er both branches of the le<;-is- 
lative body, yet there have been exa,mules iti which the appointment aud removal of 
ministers have been found to be dictated by one or other of those branches. Now, 
if this be the case with an hereditary mouia-ch possessed of those liigh prerogatives 
aud furnished wilh so many means of intlueuce, can we suppose a President, elected 
for four years only, dependent upon the pojmlar voice, impeachable by the legislature, 
little, if at all,dis'tinguished for wealth, personal- talents, or influence from thchead of 
the Dej)artuH^nt hiroself, I say wid he bid detiauce to all tliese considerations, aud 
wantonly dismiss a. mcri orious aud virtuous officer ? Such abuseof power exceeds my 
concepii(m. If anything takes nhice in the ordinary course of business of this kind, 
my imagination cannot extend to it on any rational principle. 

But let us not consider the question on one side only ; there are dangers to be con- 
templated on the other. Vest this power in the Senate jointly with the President, 
and you abolish at once thiit great principle of unity aud respousibility in the ex- 
ecutive department which was intended for the security of liberty aud the ]Uiblic 
good. If the President should possess aloue the power of removal from office, tho.se 
who are employed in the execution of the law will be in their proper situation, aud 
the claim of dejiendence be preserved ; the lowest officers, the middle grade, aud 
the highest will depend, as they ought, on the President, and the Presideut on the 
community. The chain of dejiendence, therefore, terminates in the supreme body, 
namely, in the people, who will possess, besiiles, in aid of their original power, the 
decisive engine of impeachment. 

Take the other supposition, that the power should bo vested in the Senate, on the 
principle that the power to displace is necessarily connected with the power to ap- 
point. It is declared by the Constitution that w^e nuiy by law vest the appointment 
of inferior officers in the heads of Departments; the power of removal being incidental, 
as stated by some gentlemen. Where docs this terminate? If you begiu with the 
subordinate offi(;ers, they are dependents, on their superior, he on the next superior, 
and he on — whom ? Ou the Semxte, a permanent body ; a body by its particular mode 
of election in reality existing forever; a body possessing that proportiou of aristo- 
cratic power which the Coustitution no doubt thought wise to be established in the 
system, but which some have strongly excepted against. 

And let me ask, gentlemen, is there equal security in this case as in the other? 
Shall we trust the Senate, responsible to iudividual legislatures, rather than the 
person who is responsible to the whole community ? It is true, the Senate do not (lold 
their officers for life, like aristocracies recorded in the historic page; yet the fact is, 
they will not possess Ihat respousibility for the exercise of executive powers which, 
would render it safe for us to vest such powers in them. But what an aspect will this 
give to the Executive ? Instead of keeping the departments of the Government dis- 
tinct, you make an Executive out of one branch of the legislature ; yon make the Ex- 
ecutive a two-headed monster, to use the expression of the gentleman from New Hamp- 
shire (Mr. Livermore); you destroy the great principle of responsibility, and perhaps 
have the creature, divided in its will, defeating the very purposes for which a unity in 
the Executive was instituted. 

These objections do not lie. agaiust such an arrangement as the bill establishes. I 
conceive that the President is sufficiently accouutable to the community, and if this 
power is vested in him it will be vested where its nature requires it should be vested; 
if anything in its nature is executive, it must be that power which is employed in 



12 EELATIONS BETWEEN SENATE AND EXECUTIVE DEPARTMENTS. 

superintendiug and seeing that the laws are faithfully executed. The laws cannot 
be executed but by officers appointed for tbat purpose; therefore, those who are over 
such officers naturally possess the executive power. If any other doctrine be ad- 
mitted, what is the consequence? Yon may set the Senate at the bead of the execu- 
tive deiiartment, or you may require that the officers hold their places during the 
pleasure of this branch of the legislature, if you cannot go so far as to say we shall 
appoint them, and by this means you link together two branches of the Government 
■which the preservation of liberty requires to be constantly separated. 

The following are the judicial recognitions and sanctions of the valid-, 
ity and binding character of the settlement' made of this great question 
in 1789. Chancellor Kent, in his Commentaries, vol. 1, lOth ed., p. 346, 
uses the following language : 

Tliis [meaning the settlement in 1789] amounted to a legislative coustrnction of the 
Constitution, and it has ever since been acquiesceil in and acted upon, as of decisive 
authority in the case. It applies equally to every other officer of Government ap- 
pointed by the President and Senate whose term of duration is not specially declared. 
It is supported by the weighty reason that the subordinate officers in the executive 
department ought to hold'at the pleasure of the head of that department, because 
he is invested generally with the executive authority, ajid every participation in that 
authority by the Senate was an exception to a general principle and ought to be 
taken strictly. The President is the great responsible officer for the faithful execu- 
tion of the law, and the power of removal was incidental to that duty and might often 
be requisite to fulfill it. It may now be considered as firmly and definitely settled, and 
there is good sense and practical utility in the construction. 

The Supreme Court of the United States, in Ex parte Hennen (13 
Peters, p. 259), says: 

It was very early adopted as the practical construction of the Constitution that 
the power of removal was vested in the President alone, and such would appear to 
have been the legislative construction of the Constitution. For in the organization 
of the three great Departments of State, War, and Treasury, in the year 17-9, pro- 
vision is made for the appointment of a suburdinate officer by the head of the Depart- 
ment, who should have the cliarge and custody of the records, books, and papers ap- 
pertaining to the office, when the h<-ad of the Department should be removed from 
the office of the President of the United States. (1 Story, .5, 31, 47.) 

When the Navy Department was established, in the year 1798 (1 Story, 498), pro- 
vision is made for the charge and custody of tlie books, records, and documents of 
the Department, in case of vacancy in the office of Secretary by removal or otherwise. 
It is not. here said, by removal by the President, as is done with respect to the heads 
of the other Departments ; and yet there can be no doubt that he holds his office by 
the same tenure as the other Secretaries, an<I is removable by the Prcsidout. The 
change of phraseology arose probably from its having become the settled and well- 
understooil constriu;tiou of the Constitution that the power of removal was vested 
in the President alone in such cases, although the appointment of the officer was by 
the President and Senate. 

Again, the Supreme Court of the United States, in Blake's case (U. S. 
Eei)orts, Vol. 103, p. 232), quoted approvingly its antecedent decision^ 
in the following language: 

But it was very early adopted as the practical .construction of the Constitution 
that this power was vested in the President alone. And such would appear to have 
been the legislative construction of the Constitution. 

In Kilbouru v. Thompson (103 U. S. Rep.) the identical principles in- 
volved in the present conflict between the Senate and President are 
elaborately considered and decided. 

Justice Miller, delivering the opinion of the court, said: 

It is believed to be one of the chief merits of the American system of written Con- 
stitutional law, that all the powers intrusted to government, whether state or na- 
tional, are divided into the three grand departments— the executive, the legislative, 
and the judicial. 

That the functions api)ropriate to each of these branches of government shall be 
vested in a separate body of public servants, and that the perfection of the system 
requires that the lines Which separate and divide thest- departments shall be broadly 
and clearly defined. It is also essential to the successful working of this system that 



KELATIONS BETWEEN SENATE AND EXECUTIVE DEPARTMENTS. 13 

the persons intrusted with power in any one of these branches shall not be permitted 
to encroach upon the powers confided to the others, bufi that eacli shall by the law 
of its creation be limited to the exercise of the powers appropriate to its own depart- 
ment and no other. 

To these general propositions there are in the Constitution of the United States some 
important exceptions. One of these is, that the President is so far made a part of the 
legislative power that his assent is required to the enactment of all statutes and reso- 
lutions of Congress. This, however, is so only to a limited extent, for a bill may be- 
come a law notwithstanding the refusal of the President to approve it, by a vote of 
two-thirds of each house of Congress. So, also, the Senate is made a partaker in the 
functions of appointing officers and making treaties, which are supposed to be prop- 
erly executive, by requiring its consent to the appointment of such officers and the 
ratification of treaties. The Senate also exercises the judicial power of trying im- 
peachment, and the House of preferring articles of impeachment. 

,In the main, however, that instrument, the model on which are coustructed the 
fundamental laws of the States, has blocked out with singular precision, a.nd in bold 
lines, in its three primary articles, the allotment of power to the executive, the leg- 
islative, and the judicial departments of the Government. It also remains true, as a 
general rule, that the powers confided by the Constitution to one of these depart- 
ments cannot be exercised by another. It may be said that these are truisms which 
need no repetition here to give them force. But while the experience of almost a 
century has in general shown a wise and commendable forbearance in each ot these 
branches from encroachmeuts upon the others, it is not to be denied that such at- 
tempts have been made, and it is believed not always without success. 

The increase in the number of States, in their population and wealth, and in the 
amount of power, if not in its nature, to be exercised by the Federal Government, pre- 
sents powerful and growing temptation to those to whom that exercise is intrusted 
to overstep the just boundaries of their own department and enter upon the domain 
of one of tbe others, or to assume powers not intrusted to either of them. 

The House of Eepresentatives, having the exclusive right to originate all bills for 
raising revenue, whether by taxation or otherwise ; havins, with the Senate, the 
right to declare war, and fix the compensation of all officers and servants of the Gov- 
ernment, and vote the supplies which must pay that compensation; and being also 
the most numerous body of all those engaged in the exercise of the primary powers of 
the Government, is for these reasons least of all liable to encroachment upon its ap- 
propriate domain. By reason, also, of its popular origin, and the frequency with 
which the short term of office of its members requires the renewal of their authority 
at the hands of tbe people — the great source of all power in this country — encroach- 
ments by that body on the domain of co-ordinate branches of the Goverument would 
be received with less distrust than a similar exercise of unwarranted power by any 
other department of the Government. It is all the more necessary, therefore, that 
the exercise of power by this body, when acting separately from and independently 
of all other depositories ot'ijower, should be watched with vigilance, and when called 
in question before any other tribunal having the right to pass upon it, that it should 
receive the most careful scrutiny. 

In looking: to the preamble and resolution under which the committee acted, before 
which Kilbouru refused to testily, we are of opinion that [the House of Represent- 
atives not only exceeded tbe limits of its own authority, but assumed a power which 
could only be properly exercised by another branch of the Government, because it 
was in its nature clearly judicial. 

The Constitution declares that the judicial power of the United States shall be 
vested in one Supreme Court, and in such inferior courts as the Congress may from 
time to time ordain and establish. If what we have said of the division of the pow- 
ers of the Government among the three departments be sound, this is equivalent to 
a declaration that no judicial power is vested in the Congress or either branch of it, 
save in the cases specifically enumerated, to which we have referred. If the investi- 
gation which the committee was directed to make was judicial in its character, and 
could only be properly and successfully made by a court of justice, and if it related lo 
a matter wherein relief or redress could be had only by a judicial proceeding, we do 
not, after what has been said, deem it necessary to discuss the xiroposition that the 
power attempted to be exercised was one confided by the Constitution to the judicial 
and not to the legislative department of the Government. We think it equally clear 
that the power asserted is judicial and not legislative. 

If, indeed, any purpose had been avowed to impeach the Secretary, the whole as- 
pect of the case would have been changed. But no such purpose is disclosed. None 
can be inferred from the preamble, and characterization of the conduct of the Secre-' 
tary by the term improvident, and the absence of any words implying suspicion of 
criminality, repel the idea of such purpose, for the Secretary could only be impeached 
tor "high crimes and misdemeanors." How could the House of Representatives 
know, until it had been fairly tried, that the courts were powerless to redress the 



14 EELATIONS BETWEEN SENATE AND EXECUTIVE DEPARTMENTS. 

creditors of J. Cooke & Co. ? The matter was still peiidiug iu a court, and what 
right had the Congress of the United States to iutei'fere with a suit x)eudiug in a 
court of competent jurisdiction! 

Again, what inadequacy of power existed iu the court, or, as the preamhle assumes, 
In all courts to give redress which could lawfully be supplied by au investigation by 
acon)niittee of one house of Congress, or l)y any actor resolution of Congress on the 
subject? The case being one of a judicial nature, for wliich the i>owers of the courts 
usually afford the only remedy, it may well be supposed that those powers were more 
appropriate, and more efficient in aid of such relief than the powers which belong to 
a body whose function is exclusively legislative. 

If the settlement to which the preamble refers as the principal reason why the 
courts are rendered powerless was obtained bj^ fraud, or was without authority, or 
for any conceivable reason could be set aside or avoided, it should be done by some 
appropriate proceeding iu the court which had tlie whole matter before it, and which 
hail all the power in that case proper to be intrusted to any body, and not by Con- 
gress or by any power to be conferred on a committee of one of the two houses. 

The resolution adopted as a sequence of this preamble contains no hint of any inten- 
tion of final action, by Congress on the subject. In all the argumeut of the case no 
suggestion has been made of what the House of Eepresentaiives or the Congress 
could have done in the way of remedyiug the wrong or securing the creditors of Jay 
Cooke & Co., or even the United States. Was it to be simply a fruitle>ss investigation 
into the personal aftairs of individuals? If so, the House of Representatives had no 
power or authority in the matter more than any other equal number of gentlemen in- 
terested for the government of their country. By " fruitless" we mean that it could 
result in no valid legislation on the subject to which the iuquiry referred. 

The supreme court of Pennsylvania, in a well-considered case, re- 
ported in Peun. State iieports, vol. 103, p. 486, used the following lan- 
guage : 

In considering where the power of removal is lodged, we may drawsomelightfrom 
the interpretation given to the Constitution of the United States. It declares that the 
President " shall nominate, and by and with the advice and consent of the Senate shall 
appoint," officers therein named. It is silent on the question of removal of any 
officer, but declares the judges, both of the supreme and inferior courts, shall hold 
the offices during good behavior. As to other officers. Congress iu 17K9 affirmed 
the right of removal to exist in the President, without any co-operation of the Sen- 
ate. That view was acquiesced in as the true construction of the Constitution until 
the passage by Congress of the tenure-of-office act of the 2d of March, 181)7, which 
was superseded by the act of 5th April, ld69, of- a moditied character. Apart from 
this legislation, the fact that the consent of the Senate was necessary to authorize 
the President to appoint, did not prevent him from removing the officers at his pleas- 
ure. 

Mr. Webster is paraded as au authority to support the present claim 
of the Senate. In the great debate on " Executive patronage," in 1835, 
Mr. Webster spoke as follows: 

The bill before the Senate, it must be observed, expressly recognizes and admits 
the actual existence of the power of removal. I do not mean to deny, and the 
I)ill does not deny, that at the present moment the President may remove these of- 
ficers at will, because the early decision adopted that construction, and the laws have 
since, uniformly, sanctioned it; the law of 1820 expressly affirms the power. I con- 
sider it, therefore, a settled point; settled by construction, settled by precedent, set- 
tled by the practice of the Government, and settled by statute. 

At the same time I am very willing to say that, after considering the question again 
and again within the last six years, iu my deliberate judgment the original decision 
was wrong. I cannot but think that those who denied the power in 1789 had the best 
of the argumeut, and yet I ^^ ill not say that I know myself so thoroughly as to affirm 
that this opinion may not have been produced in some measure by that abuse of the 
power which has been passing before our eyes for several years. It is possible that 
this experience of the evil may have aft'ecte.d my view of the constitutional argu- 
ment. 

Senator Thurman, in the protracted debate, in 1869, on the bill to 
repeal the tenure of office act, used the following l-auguage: 

Believing that the original interpretation of the Constitution is the correct one j 
that the power of removal from office is au executive power; that the duty of exer- 
cising that power is enjoined upon the President by tlie provision of the Constitution 
that he shall take care that the laws be faithfully executed; believing that the 



RELATIONS BETWEEN SENATE AND EXECUTIVE DEPARTMENTS. 15 

assent of the Senate is not a necessary and logical result that tlie Senate consents to 
appointments ; believing tliat no such inference follows from the concurrence of the 
Senate in maliing appointments; and believing, also, that it is wiser that it should 
he as our fathers settled it, that the offices will ho better filled aiul the laws uiore 
faithfully executed if this power is vested in the President alone, I feel bound to 
vote for an unqualified repeal of the tennre-of- office act. 

Senator Morton, in the same debate in 1869, spoke as follows : 

It was said by the Senator from Illinois that from the begiuuing men's minds have 
divided upcm the question as to whether this power of removal existed in the Execu- 
tive absolutely or in connection with the Senate. That the President might exercise 
it absolutely in the absence of legislation or restriction is confessed by the continued 
practice of the Government for seventy-eight years, down to 1867. 

But the Senator says the minds of men were divided before that time on the ques- 
tion. Sir, that division did not amount to much. There have been very few ques- 
tions raised in this country that there has not been something said on both sides 
wnthin the last seventy or eighty years; but there has been as strong a union of opin- 
ion in favor of the exercise of this power by the Executive, in the absence of legis- 
lation, as car.be found, perhaps, upon the exercise of any other power that is granted 
by the Constitution. Moreover, there has been a great unity of sentiment from the 
first, that legislation upon that power was not desirable. 

My understanding of the ten are-of -office act is that it was adopted for a special 
purpose ; that it was special in its character; that it was intended to lutet a condi- 
tion of things that had never occurred before in the administration, and which we 
hope will never occur again. It was not made for all future Presidents. Sir, let me 
ask this ^question: If the tenure-of office act had not been passed when it was, and 
was not now the law of the land, Avould it enter into the head of any Senator, of any 
member of Congress, now to pass such a law ? The enactment of the law was brought 
about by a peculiar state of public affairs. 

Senator Sherman, in the same debate, in 1869, used the following lan- 
guage : 

But now, when we appeal to the Senate to yield to the President the same power 
of removal that has been exercised by Washington, and every President from Wash- 
ington down to Johnson, we are referred to old manuscripts that have never been 
printed before ; we are referred to the debates of Webster, and Clay, and Calhoun, &c. 

What is the secret of the whole of it ? Why, sir, during Washington's administra- 
tion the anti-Federalists were opposed to Washington, and opposed to his appointing 
power ; they opposed conferring upon Washington the power to remove the Secretary 
of State. After Washington's administration expired, and John Adams served his 
fitful four years, with a majority much of the time in bothhout;es against him, where 
were those gentlemen then with their notions about the power of the President and 
the power of removal ? In the time qf Jeflierson and Madison and Monroe, where 
were those gentlemen who were afraid of Executive authority ? Did they propose to 
repeal any of the laws passed in the time of Washington ? Not at all. In the time 
of John Quincy Adams, Mr. Benton made a speech, which has been read. Then John 
C. Calhoun, who had quarreled with Andrew Jackson, took up the banner of Benton 
and made Benton's speech over .again, and Mr. Webster and Mr. Clay joined in. If 
there was so much dauger of this Executive power, why did not the Democratic party, 
with a large majority in both Houses, and with a President on their side, repeal these 
old laws which confeired upon the President the power of removal? 

It always has been so, and it always will be so. Notwithstanding all that will be 
written and said, the ins will try to limit the power of the outs, and the oiits will 
try to limit the power of the ins. There is no doubt about it. When the Democrats 
are in power the Eepublicans seek to limit their power. When the Republicans are 
in power the Democrats, on the other hand, seek to limit their power. So it has been 
in all. times, and I do not think we are any wiser or better than our fathers, and 
probably no worse. 

But the crowning indorsement of the settlement of this question by 
our fathers in 1789, and how it should now be regarded, is contained 
in the great speech of the distinguished Senator from New York (Mr. 
Evarts), who alvvays weighs well the full force and meaning of every 
word he utters. On the impeachment trial of Andrew Johnson (one 
among other specifications being that he had, without cause, removed 
Secretary Stanton}, Mi . Evarts used the following language : 

The Congress of 1789 decided, and its snccessors for three-quarters of a century ac- 
quiesced in that doctrine. I will not weary the Senate with a thorough analysis of 



16 RELATIONS BETWEEN SENATE AND EXECUTIVE DEPAETMENTS. 

the debate of 1789. It is. I believe, decicleclly the most important debate in the his- 
tory of CoDgress. It is, I think, the best-considered debate in the history of the Gov- 
ernment. I think it included among its debaters as many of the able, wise, and 
learned men, the benefit of whose public service this nation has ever enjoyed, as any 
debate or measure which this Government has ever had or entertained. Tlie premises 
in the Constitution were very narrow. Tlie question of removal from office, as a dis- 
tinct subject, had never occurred to the minds of the men of the convention. The 
tenure of office was not to be made permanent except in the case of judges of the 
Sui>reme Court. The periodicity of Congress, of the Senate, and of the Executive 
was fixed. Then there was an attribution of the whole interior administrative official 
powers of the Government to the Executive, with the singh^ qualification, exceptional 
in itself, that the advice and consent of the Senate should be required as a negative 
on the President's nomination oulyi 

If on these grounds you dismiss the President from this court convicted and deposed, 
you dismiss him the victim of the Congress and the martyr of the Constitution by 
the very terms of your judgment, and you throw open for the masters of us all, in the 
great debates of an intelligent, instructed, fearless, practical nation of freemen, di- 
vision of sentiment to shake this country to its center — the omnipotence ofCongress 
as the rallying cry on one side, and the supremacy of the Constitution on the other. 

The minority of your committee beg leave to call the attention of the 
Senate to a few of the most conspicuous and illustrious protests against 
the wisdom of any attempt by the Senate to usurp the President's 
power of removal. 

Senator Morton, in his speech on the bill to repeal the " Tenure of 
office act," in 18G9, spoke as follows : 

What is the effect when the Senate becomes a tribunal for the trial of the causes 
for which men are suspended? Scarcely any officer can be found of any importance 
who will not have some Senator upon this lioor as his friend, and that Senator will 
stand up and inquire, "What are the causes for which this man has been susi^ended? 
I have known him ; he is my friend ; perhaps I secured him the ai)poiutnient, and I 
cannot consent to his removal unless there is some tangible and sufficient cause made 
out." Then the Senate must enter upon the investigation. They must examine into 
the causes of this man's suspension. Is he an honest officer? If not, what has he 
done ? If he is an incapable officer, wherein has he failed ? These are questions we 
must ])ass upon. 

Each one of these susiDensious is a case. If we concur in the suspension after ex- 
amination, the officer goes out of this chamber with a blemish upon his character 
which he can scarcely outlive. If we refuse to concur in the suspension, we say to 
the world the President has done this man injustice, either intentionally or uninten- 
tionally. If he acted in good faith, he acted in ignorance; if he was well informed, 
then he acted in bad faith, or out of malicious feelings towaid this man. 

The President is in some respects on trial also ; and as he is to be put on trial, as to 
whether his judgment has been intelligent, or has been an honest one in regard to the 
man suspended, he must feel a great deal of interest in the result ; and if he is to be 
adjudged in this way he will hesitate a long time before he makes the suspension. He 
may be satisfied in his own mind that an officer is not doing right, but unless he can 
procure facts that are tangible in themselves, and that can be laid definitely before 
the Senate, or can be stated intelligently before a jury, he will not suspend that man, 
and the maladministration goes on. Will you tell me, sir, that any admin istrati(m 
can be conducted efficiently under the operation of that law? 

Now, Mr. President, let me suppose that this law remains in force, what will be the 
eifect of it? When we come back here in the month of December, we shall find a 
long docket of these cases of suspensions, perhaps several hundred of them, and they 
will have to be tried one bj' one. We fake up the first case. That perhaps takes 
one afternoon, or one entii'e executive session ; it may be two or three, and I tell you, 
sir, that this Senate will not have time, if it devotes its whole time to the consideration 
of these cases, to pass upon them if the President shall suspend every officer that in 
his judgment ought to be suspended for dishonesty or inelficiency. It will impose 
upon the Senate a labor that it cannot perform. It will be physically impossible for 
it to discharge that labor. 

There must be responsibility somewhere. The very essence of successful adminis- 
tration under every constitutional government is that the responsibility shall be dis- 
tinctly located somewhere. Suppose he suspends an officer, and the Senate does not 
concur in that suspension ; that ]jart of the responsibility then belongs to the Senate, 
It is divided between some sixty or seventy gentlemen on this floor, and the share of 
each gentleman is very small. If the responsibility is placed between the President 
and Senate, neither of them will have the whole of it. We divide it up until it 
amounts to nothing. 



EELATIONS BETWEEN SENATE AND EXECUTIVE DEPARTMENTS. 17 

Agaiu we quote from the well-considered speech of Senator Sherman 
in the same debate : 

Has tlie Senator from Vermont arrived at that exemplary and forgiving state of 
mind tiiat he would not be willing to remove any man who disagreed with him in 
opinion, or, in other words, who was a Democrat, unless he could be convicted of 
crime upon satisfactory evidence? 

Mr. Edmunds. Permit mo to ask the Senator whether I ought not to have arrived 
at that virtuous point on true principles of government, whether I have or not? 

Mr. Shekman. I do not think so. I believe that all the leading officers of this Gov- 
ernment ought to be in harmony with the political sentiments of the majority, and 
that although the doctrine of Governor Maroy was rather too bluntly stated in his 
expression that "to the victors belong the spoils," yet in actual practice, in theory, 
and in fact no administration of this Goverumeut ever did or ever will exist without 
practically acting upon the rule that to the successful party belong the great offices 
of the Government. It may not be according to the theoretical codes of morality and 
public policy which the Federalists talked ot when the Democrats were in power, and 
which the Democrats talked of when the Federalists were in power, but still it is a 
rule of practical administration which will alwaj'^s be applied in a republican form 
of government. 

Now, in my judgment, the tenure of-office law cannot, with due regard to the pub- 
lic interests, be practically enforced. Wliat has been our experience within two 
years? When we came back here we wei'e met with piles of documents which the 
President sent to us; various papers showing that certain officers of the Government 
had performed acts which in his judgment amounted to misdemeanor, &c., and for 
which they were suspended. He gave us specihc facts and evidence. These cases 
were referred to the appropriate committees. What were we called upon to exam- 
ine ? We had to take up and carefully read piles of papers and examine each particu- 
lar case, like a chancellor or a judge of assize. Every suspended officer coutended 
that he was the most innocent man born since the time of Adam. He demanded a 
trial, and copies of charges and proof and a formal hearing before the committees of 
this body, he converting us into a court and jury to try his particular case. If we 
could nor try him, why demand charges and evidence? 

If the tenure of office act was right in principle we were bouii I to examine each 
case to see whether or not the accused officer was, according to t he language of the 
law, guilty of misconduct in office or crime, or had become incapable or legally dis- 
qualitied. " The result was that some of the committees of this body could not trans- 
act their business. These cases were referred, and after great delay were reported 
upon, in one case the accused was tried, convicted, and sent to the penitentiary while 
we were deliberating whether he was properly suspended or not." The result was 
that we did not and could not determine them. 

There probably will be from tive hundred to hve thousand removals during the next 
year in the service of the United States in the ordinary course of the business of this 
country. The number of officers to whose appointment the contirmatiou of this body 
is required I should estimate in round numbers at from tive to twenty thousand. We 
know there are great multitudes of them whose appointments require the coutirma- 
tion of the Senate. If we have to remain here, and act upon the cases of all removals, 
in order to evade the second section, we put ourselves to a great deal of unnecessary 
trouble merely to evade one of our own laws. If we adjourn, and leave the Presi- 
dent without any power to remove, and only the power of suspension, his bauds are 
effectually tied. He can not suspend a postmaster, or a revenue officer, or any of this 
vast multitude of officers, unless he is prepared upon satisfactory evidence to make 
out a case of crime or misconduct in office. 

It is practically impossible thus to administer the Government. The practical 
eifect of the tenure-of-office act is to keep bad men in office, to divide the respousi- 
bility for their misconduct, to enable the President to shield himself from responsi- 
bility, and to destroy the energy, efficiency, and unity absolutely necessary in the 
executive administration of various departments of the Government. That was the 
practical effect. 

Now, Mr. President, look at the actual result as we know it existed. It was the 
common practice for applicants for office to run here to members of the Senate and 
say: "I can get an appointment if I am sure of confirmation." There was not a 
member of the Senate who was not pressed constantly by his constituents to pass his 
judgment in advance on the question of confirmation and before his a[>pointmout — 
'' I CHU get the appointment if I am sure of contirmatiou," which reversed the whole 
order of proceeding in tilling the offices of the Government. The Senate became the 
appointing power ; that was the course of business. The result was that many men 
who had an acute sense of honor, who wished to be free from all this kind of double 
complication, would not seek or accept office under an administration so hampered 
and controlled. 

S. Eep. 135, pt. 2 2 



18 EELATIONS BETWEEN SENATE AND EXECUTIVE DEPAETMENTS. 

The duty of the Senate is to advise and consent to appointments. The Constitution 
confers on this hody no power to remove. We consent to removals ; we advise as to 
confirmations. When a man is removed from office, and another name is sent here, 
we pass simply upon his qualification and fitness for the office; but the Constitution 
confers upon us no power to proceed iu the removal. That is conferred only by the 
tenure-of office act. Nowhere else do we derive such a power. By the tenure-of-office 
act the power of removal, as well as the power of confirmation, is conferred on the 
Senate; and I say with such a power invested in the Senate it will be impossible to 
avoid controversy and collision between the Executive power and the Senate. We 
shall share iu and finally monopolize the power of the Executive over all the offices of 
the Government. 

Senators must very easily draw distinction between the power of removal and the 
power of conlirmatiOn. The power of confirmation is a resulting power, depending 
on the previous act of another officer of the Government ; and all we say in our act 
of confirmation is whether or not the person named is a man fit to discharge the duties 
of the office. That power cannot and will not be abused ; but the power of removal 
is a very difi"erent power, a power never contemplated to be invested in the Senate. 

It seems to me that we are now acting asjudges in our own case. If this great power 
of the Senate is maintained to prevent the removal of any officer of this Government, 
it is maintained by the Senate for its own behalf. The public judgment will say that, 
although we are not nominally interested, we are maintaining powers that were never 
conferred upon the Senate until two years ago, and which were then conferred for a 
special purpose. Iu my opinion we ought to be careful that our judgment should be 
impartial, and not to be influenced by a love of power. 

# # # # # # 

We share in one-half of the legislative authority of this Government. We are judges 
over all officers in the trial of impeachment. We participate with the Executive 
in the power of appointing to office, also in the power to make treaties. I ask if all 
these great powers are not sufficient for the ambition of any Senate. 

As a general rule, it is not wise to mingle the powers of the various departments of 
the Government. There are three great divisions or departments of the Government 
that stand apart from each other. They form the triangle of public safety, and upon 
them rest the safety, order, and good cimduct of society. These are the legislative, 
the executive, and the judicial departments. They have been in exceptional cases 
mingled. The Senate shares with the President in the appointing power, and also 
shares with the President in the treaty-making power, &c. It is not wise, in my 
ju'dgment, to overlook this division of powers. 

The foregoing overwhelming array of authorities, reasons, and argu- 
ments demonstrate conclusively the far-seeing wisdom and statesman- 
ship of the settlement of the great question now before the Senate by 
our fathers in 1789. No one had the temerity to disturb it until 1814, 
during the administration of Mr. Madison. 

In the debate in 1835, found in Congressional Debates, vol. 11, part 
1, p. 530, Senator Grundy said : 

When Mr. Granger, in 1814, was dismissed from the office of Postmaster- General by 
Mr. Madison, a great sensation was produced both in and out of Congress. This I 
know, for I was here at that period. Mr. Granger was known to be an able and effi- 
cient officer. He was a great favorite with the Democracy of New England. He was 
not dismissed for any delinquency in the discharge of his public duties. In this state 
of things the following resolution was introduced into the Senate of the United States, 
as appears from the second volume. Executive Journal, j). 504. Mr. German submitted 
the following motion for consideration : 

"ResoJved, That the President of the United States be, and he is hereby, requested to 
inform the Senate whether the office of Postmaster-General be now vacant, and if 
vacant, in what manner the same became vacant." 

This resolution was rejected by a vote of tbe Senate, which shows it was the under- 
standing at that time that they had no right to interfere in cases of removal. 

This is the only instance, since the decision of the Congress in 1789, 
in which any member of the Senate has attempted to call on the Presi- 
dent for his reasons for removal, until the present Chief Magistrate 
came into office. In 1830 Mr. Holmes, then a Senator from Maine, in- 



RELATIONS BETWEEN SENATE AND EXECUTIVE DEPARTMENTS. 19 

troduced a series of resolutions, one of which called for the President's 
reasons for removals from office, as follows: 

Besolved, That the President of the Uuited States be respectfully i-equested to com- 
iimnicate to the Senate the number, names, and offices of the officers removed by him 
since the last session of the Senate, with the reasons for each removal. 

On motion by Mr. Grundy that said motion be postponed indetinitely, it was deter- 
mined in the affirmative — yeas 24, nays 21. 

The tenure- of- office law, passed in 1867, was the first and only legis- 
lative interference by the Senate with the President's power of removal, 
and rhe objects and exceptional reasons of that act of usurpation have 
been fully explained by those who aided in its passage. President 
Grant, in his first annual message in 1869, recommended the total re- 
peal of the tenure -of- office law, for the reason that it would be impossi- 
ble for him to administer the Government under its operation. The ' 
House, by nearly a unanimous vote, recommended the repeal. 

The House bill was amended in the Senate as now found in sections 
3 767 and 1768. Section 1767 is part of the original act, with the ma- 
terial qualification that it is subjected to the control of section 1768. 
St'crioii L768 is the controlling part of the whole act as it now exists. 
That section provides that — 

Durinj^- any recess of the Senate, the President is authorized, in his discretion, to 
suspend any civil officer appointed by and with the advice and consent of the Senate, 
until the end of the next session of the Senate, and to designate some suitable person, 
subject to be removed, in his discretion, by the designation of another, to perform the 
duties of such suspended officer in the mean time ; and the person so designated shall 
take the oath and give the bond required by law to be taken and given by the sus- 
pended officer, and shall, during the time he performs the duties of such office, be 
entitled to the salary and emoluments of the office, no part of which shall belong to 
the officer suspended. The President shall, within thirty days after thecommencement 
of each session of the Senate, except for any office which in his opinion ought not to 
be filled, nominate persons to fill all vacancies in office which existed at the meeting 
of tlie Senate, whether temporarily filled or not, and also in the place of all officers 
susiiended; and if the Senate during such session shall refuse to advise and consent 
to an appointment, in the place of any suspended officer, then, and not otherwise, the 
President shall nominate another person as soon as practicaule to the same session of 
the Senate for the office. 

It must be conceded, as this section expressly provides, that the Pres- 
ident's power to suspend a civil officer in vacations of the Senate is 
" discretionary," and that such suspended officer remains out of the 
office at least until the Senate adjourns, when he is again certainly liable 
to be suspended if reinstated by the operation of section 1768, which is 
denied by many of the best lawyers in the Senate, and so on, without 
limitation as to time, or discretion, should the President elect to exer- 
cise his power of suspension. On this discretionary power of the Pres- 
ident to suspend, as called in the statute, or to remove from office, under 
the Constitution, the Supreme Court of the United States, in the case 
of Marbury vs. Madison, 1 Cranch's Reports, at p. 165, says : 

By the Constitution of the United States the President is invested with certain im- 
portant political powers, in the exercise of which he is to use his own discretion, and 
is accountable only to his country in his political character and to his own conscience. 
To aid him in the performance of these duties he is authorized to appoint certain 
officers, who act by his authority, and in conformity with his orders. 

In such cases their acts are his acts, and whatever opinion may be entertained of 
the manner in which executive discretion may be used, still there exists, and can 
exist, no power to control that discretion. The subjects are political. They respect 
the nation, not individual rights, and being intrusted to the Executive, the decision 
of the Executive is conclusive. 

In relation to the exercise by the President of his power of suspen- 
sion or removal for cause, the distinguished Senator from Vermont (Mr. 



20 EELATIONS BETWEED SENATE AND EXECUTIVE DEPARTMENTS. 

EdniuDds), in the debate on tlie bill to repeal the tenure of office act, 
used the following language iu answer to Senator Morton: 

I eay with him that the Pres'dent of the United States has no iDusiness to nominate 
to us ai mau — 1 am now speaking of moral business, because the Constitution gives 
him a rijjht to nominate as often as he pleases — the President has no right to propose 
to us to ])ut out one man and put in another, unless there is cause. Now, what is 
cause? The Constitution has made the cause. The united discretion of the Presi- 
dent of the United States and the representatives of the States, that is cause. If the 
President of the United States thinks for any reason that satisfies his moral nature 
that it is better to make a change in an office, and proposes it to us, and we are satis- 
fied for any reason that is consonant to our moral sense of right and wrong that that 
change ought to or may be made, then it is done, and there is cause. My friend may 
go into a dissertation if he wishes to do so, wlien it comes to his turn to speak, upon 
proximate and final cause. There is ever so much discussion in books of philosophy 
about that. 

But it is cause enough for me, sir, constitutional cause, if the Senator will, when 
the President of the United States acting, if he is honest, as he always must, upon a 
conscientious regard for the public service and a conscientious sense of his responsi- 
bility to the people and to God, chooses to send in one man's name for a jjlace that 
another man holds. When he has done that he has done his duty, whether that cause 
satisfies my friend and me or not. Then it becomes our opportunity to speak and to 
consider, and if we are satisfied with the cause, or with auy other cause that appeals 
to our judgment and good sense, the act is accomplished. 

We have in this extract the key to the report of the majority of your 
committee. 

The Senator from Vermont, the able chairman of the Judiciary Com- 
mittee, is entitled to the distinction of being the author of the remarka- 
ble discovery that the unqualified, exclusive, and independent power of 
removing or suspending officers of the United States can be conceded 
to the President for his free exercise for any cause or reason that may 
satisfy him, and that the Senate has no right to interfere with or con- 
trol, in any manner, the use of such power by the President; but that 
after the President has so exercised his power, and made the suspen- 
sion for any cause satisfactory to him, and nominates to the Senate a 
person to take the place of the suspended officer, then the power of the 
Senate intervenes to " advise and consent to the nomination," which is 
just as absolute, exclusive, and independent as the President's power to 
suspend and nominate, and that iu the exercise of this power the Sen- 
ate can decide, Mith or without cause, or for any cause satisfactory to 
them, to withhold their advice and consent to the nomination. 

The soundness of this proposition may be admitted, as the Senate can 
arbitrarily exercise any discretionary power; but it leaves the question 
unanswered whether the Senate has any constitutional or lawful right 
to request the President or direct the Attorney-General to' transmit to 
the Senate, in executive session, papers and docun)ents in the keeping 
of either, that relate exclusively to suspensions by the President under 
section 1768 of the tenure-of office act. Such i)apers and documents 
have no existence or character as public documents. They relate solely 
to a matter under the absolute power and control of the President, 
"in the exercise of which," in the language of the Supreme Court, "he 
is to use his own discretion, and is accountable only to his country in 
his political character and to his own conscience." 

The right of the Senate or House to papers and documents in the 
keei)ing of the President or the heads of Departments must be decided 
by their contents and character and the use that can be made of them 
in the exercise of auy power or jurisdiction intrusted to either house 
by the Constitution in executive or legislative session. If the papers 
and documents can instruct or aid either house in the exercise of legis- 
lative or executive powers or privileges intrusted to them by the Consti- 



RELATIONS BETWEEN SENATE AND EXECUTIVE DEPARTMENTS. 21 

tntion, the riglit of either house to the possession of such papers or 
documents, or their contents, has never been questioned. It is impossi- 
ble, in the judgement of the minority, for the majority or for the Senate 
to find the slightest support, excuse, or justification for their claim to 
the papers and documents relating exclusively to suspensions by the 
President, except on the ground that the Senate has the same power 
under the Constitution of advising and consenting to suspensions by 
the President that they have to advise and consent to his appoint- 
ments. 

There is no ingenuity sufficiently skilled in special pleading to sepa- 
rate the two powers of suspension and appointment, and make each 
absolute and independent of the other, and at the same time claim 
that the custodian of one power is entitled to all the papers and docu- 
ments in the sole keeping of the custodian of the other power, and re- 
lating exclusively to matters within his jurisdiction. 

But it is insisted that the President has no right to know or to in- 
quire what use theSenate intendsmaking of the papers and documents. 
Can it be seriously urged that if the papers and documents called for 
are not public, but private, and relate exclusively to the official acts 
of the President, for which he is under no responsibility to the Senate, 
the Senate has any right to their possession ? Who is to judge whether 
the papers and documents are public or private, the President, who 
knows their contents and to what they relate, or the Senate, who has no 
such information"? How is the Senate to pass on the character and con- 
tents of the papers and documents before seeing them, and how will it 
be if after inspection of the papers and documents the Senate decides it 
has no right to their possession? How can the President possibly 
avoid knowing what use the Senate intends making of the papers when 
they show on their face that they cannot be made to relate to anything 
but suspension *? And if it were possible for the President to close his 
eyes to thecontents of thepapersand documents, andtheuse that is to be 
made of them by the Senate, can the right be denied to those Senators 
who resist the claim of the Senate to have inspection of papers and doc- 
uments relating exclusively to suspensions by the President, to know 
what use is intended to be made of the papers and documents by the 
Senate? 

The minority claim to know what use is intended to be made by the 
majority of your committee of the papers and documents called for and 
relating exclusively to suspensions, and with thatknowledgethe minority 
are satisfied that their possession and use b\ the Senate is unconstitu- 
tional and supported by no law, usage, or public ])olicy, and that their 
transmission to the Senate was rightfully refused by the Attorney-Gen- 
eral on the order of the President. The minority of your committee 
cannot close their report without expressing surprise at the appearance 
in the majority report of the following resolution : 

Resolved, That the provision of section 1754 of the Revised Statutes declaring— 
"That persons honorably discharged from the military or naval service by reason 
of disability resulting from wounds or sickness incurred in the line of duty shall be 
preferred for appointments to civil offices, provided they are found to possess the 
business capacity necessary for the proper discharge of the duties of such office, ought 
to be faithfully and fully put in execution, and that to remove, or to i)ropose to re- 
move, any such soldier whose faithfulness, competency, and character are above re- 
proach, and to give place to another who has not rendered such service, is a violation 
of the spirit of the law, and of the practical gratitude the people and Government 
of the United States owe to the defenders of constitutional liberty and the integrity 
of the Government." 



22 RELATIONS BETWEEN SENATE AND EXECUTIVE DEPARTMENTS. 

Under what action of the Senate does the majority claim the author- 
ity to report sucJi a resolution to the Senate for its adoption ? What 
possible connection has the subject mentioned in the resolution with 
the papers and documents called for in the case of the suspension of 
Duskiu, which is the only matter referred by the Senate to the Judi- 
ciary Committee ? The information of the minority of j^our committee is 
that Duskin never was a Union soldier, but, on the contrary, was either 
a member of the Confederate army or a Confederate sympathizer in his 
native State of North Carolina. 

The minority of your committee fully indorse section 1754 of the Re- 
vised Statutes, and heartily favor its faithful execution; but their infor- 
mation and belief satisfy them that under its operation during the ad- 
ministrations of Eepublican Presidents partisan and political influences 
and considerations have governed in a great degree in the selection of 
the intended beneficiaries of that statute, so that no equal and JQSt dis- 
tribution has been made by Eepublican Presidents among the merito- 
rious class described in the law, as is doubtless desired alike by Jiepub- 
lican and Democratic soldiers and marines who were comrades in a com- 
mon cause. 

Such unauthorized action of the majority of your committee serves 
one purpose, and that is to furnish additional proof of what was before 
manifest, that the object and intent of this extraordinary proceeding- 
is to secure political and partisan advantage and benefit. The inevita- 
ble result is to arraign President Cleveland and try him by the Senate, 
with an unfriendly political majority, for making suspensions in alleged 
violation of his public i)ledges and promises not to make removals or 
suspensions except for cause. 

President Cleveland's promises and pledges are part of the published 
history of the country, and for their faithful performance he denies his 
responsibility to the Senate, and stands ready for trial by the people. 
He did make the promise that during the term of a civil officer he would 
not suspend or remove him for the sale reason that he was a Republican. 
Merely being a Republican^ if he had been, and was a capable, faithful, 
and efficient officer, the President declared he would not regar<l as suf- 
ficient cause. But if such officer, icMle in office, had used its power or 
influence or emoluments to promote the organization and success of 
his party, by attending county, district, State, or national conventions, 
and making himself active as a partisan in elections, the President has 
publicly declared such conduct and action by any incumbent, however 
capable, faithful, and efficient in the discharge of his official duties, as 
a violation of the spirit of the law declaring that civil office is a public 
trust for public uses, and not to be employed as an element of power in 
party organizations and elections, and that such conduct would be 
treated as sufficient cause for suspensions. 

The President declines to submit voluntarily to the decision of a tri- 
bunal, having no jurisdiction over the question, the sufficiency of such 
cause for suspensions — especially when his fear is that such conduct in 
the officer might be regarded by the Republican majority as a reason for 
the retention of the incumbent in office. The President will never avoid 
a trial by the people for the exercise of any of his powers or the dis- 
charge of any of his official duties, as he will have a fair tribunal on the 
whole truth. But he declines obedience to any unlawful summons to 
trial under usurped authority by an unfriendly tribunal on mere papers 
and documents relating exclusively to suspensions, and contaiidng in 
nearly every case only a partial statement of the causes, facts, and rea- 
sons for his official act of suspension. In a large majority of the cases 



KELATIONS BETWEEN SENATE AND EXECUTIVE DEPARTMENTS. 23 

of suspension, as the minority are informed, the President had informa- 
tion communicated to him orally by persons considered reliable, which 
it would be impossible for him to remember or reproduce in every case, 
so as to put the Senate in possession of all the facts which governed him 
in the suspension, if the Senate had the. authority under the Constitu- 
tion or laws of the United States to call him to an account. 

In conclusion, the minority of your committee are gratified at being- 
able to state that in the Forty-sixth Congress, when the Democrats 
had a majority in the Senate, no such spectacle as that now exhibited 
to the country was ever witnessed in the history of its proceedings. 
All of which is respectfully submitted. 

JAMES L. PUGH. 
RICHAED COKE. 
GEOEGE G. VEST. 
HOWELL E. JACKSON. 



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